Posted: 10/12/2012 11:48:25 AM EDT
| How does it work in regards to someones home? Lets say an officer smells the odor of drugs, do they need a warrant to enter or is the smell enough to do a search? For vehicles, it seems they are good to go, but what about a home? |
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Quoted:
How does it work in regards to someones home? Lets say an officer smells the odor of drugs, do they need a warrant to enter or is the smell enough to do a search? For vehicles, it seems they are good to go, but what about a home? I think the vampire law applies in this case, if you don't invite them, they can't come in. |
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Depends on the circumstances but in general it can go two ways. Secure the crime scene to prevent the destruction of evidence, apply for warrant, serve warrant when granted. If you have no reason to suspect the evidence will be destroyed skip the secure part and apply for warrant.
The exemption to the search warrant rule for cars does not transfer to homes and structures. |
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THIS IS NOT LEGAL ADVICE
That said, here is a very brief overview: Warrantless entry is prohibited unless there are exigent circumstances, supported by probable cause, to justify the entrance : Payton v. New York The following exigent circumstances will justify warrantless entry, provided there is probable cause to believe the exigent circumstance exists: -When there is an “objectively reasonable basis” to believe that the presence or threat of serious injury is at hand. This applies regardless of who the threat may be directed at (harm to public, occupants, officers). It also does not require criminal activity. Brigham City v. Stuart. -Hot Pursuit: police can pursue suspects into a home without a warrant. Warden v. Hayden. -Destruction of Evidence: police can enter a home, without a warrant, where there is probable cause to believe that evidence is CURRENTLY being destroyed within. Kentucky v. King. -Creating Exigent Circumstances: officers are NOT prohibited from doing anything short of a threatened or actual violation of the 4th Amendment. Kentucky v. King They may: •Knock, announce their presence, ask to enter •Ask for consent to search -There is No blanket exception to search a homicide scene in a home without a warrant. Mincey v. Arizona. Search/Arrest Pursuant to ARREST Warrants Executed in the Home Payton v. NY: an officer may enter a suspect’s home to execute an ARREST warrant when there is reason to believe the suspect is within. Chimel v. CA: an officer who makes an arrest is entitled to search the area within the suspect’s immediate reach (“grab area”). This seems to apply to any arrest, not just one in a home, but in includes instances of arrest inside a person’s home. Maryland v. Buie—The Protective “Buie” Sweep: officers may conduct a protective search/sweep of a home in conjunction with an arrest in a residence WHEN there is reasonable suspicion that dangerous people could be hiding in the premises. Coolidge v. NH— The Plain View Doctrine: Wherever an officer is lawfully present to make an arrest, including in a home, they may seize any object in plain view when it is immediately apparent that the object is criminal evidence. BUT the officers cannot pick up the object, manipulate it, or do a thorough investigation to determine whether it is criminal evidence (that would require a warrant). That connection must be immediately apparent. OP in regards to your question I would specifically look up the Supreme Court case of Kentucky v. King mentioned above. the facts are somewhat amusing. Essentially officers are pursuing a suspect for which they have probable cause to arrest for possession. The suspect enters an apartment complex and the police lose visual as the suspect turns a corner. Once the police reach the corner the suspect is nowhere in sight but there are only two doors he could have entered. The officers smell marijuana coming from one door so they knock and announce their presence. No one answers the door but the officers hear flushing of toilets and all kinds of sudden movement. This leads them to believe that evidence (drugs) are being destroyed. This creates probable cause to believe the destruction of evidence (an exigent circumstance) is occuring so the officers enter and make several arrests for possession. The catch is they entered the wrong apartment (the suspect was actually in the other). Talk about bad luck for the others. Nonetheless, the Supreme Court upheld the entry and arrests of the first apartment (even though they had nothing to do with the actual suspect they were pursuing in the first place) because the officers formed probable cause to believe that evidence was being destroyed inside the apartment (marijuana smell, toilets flushing/sudden movement upon knock and announce) which permitted their entry and subsequent arrests. Does that help explain entry into the home? |
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Quoted: Are talking about? 3rd Party calls and says "I smell someone smoking dope at my neighbors house."? Or is the LEO already at the residence on an unrelated matter? It was a debate on another board. The setup is the guy was having a party. He was sitting in the backyard when a couple of officers entered the back lawn. They went to enter the house and he asked them if they had a warrant to enter. They cuffed him and said they smelled marijuana and then looked through the house. |
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Quoted: Quoted: Are talking about? 3rd Party calls and says "I smell someone smoking dope at my neighbors house."? Or is the LEO already at the residence on an unrelated matter? It was a debate on another board. The setup is the guy was having a party. He was sitting in the backyard when a couple of officers entered the back lawn. They went to enter the house and he asked them if they had a warrant to enter. They cuffed him and said they smelled marijuana and then looked through the house. Just me but I'd get a search warrant to cover my ass, but thats an awful lot of work for some small amount of weed. I'd probably just pass it to our Narc guys and leave. |
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Quoted: Quoted: Quoted: Are talking about? 3rd Party calls and says "I smell someone smoking dope at my neighbors house."? Or is the LEO already at the residence on an unrelated matter? It was a debate on another board. The setup is the guy was having a party. He was sitting in the backyard when a couple of officers entered the back lawn. They went to enter the house and he asked them if they had a warrant to enter. They cuffed him and said they smelled marijuana and then looked through the house. Just me but I'd get a search warrant to cover my ass, but thats an awful lot of work for some small amount of weed. I'd probably just pass it to our Narc guys and leave. No kidding. I know a guy who absolutely would do that, though. 
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