Legal Question: 4th Amendment

[Stefka]

If the door is OPEN, they have a requirement to go in and check what's going on. You want a head story on tomorrow's paper abouta family that was gunned down, cops walked by an open door, and no one checked it out?

Did they use that law for that purpose or to look up the marijuana? Well duh. But they're well within their rights.

And next time, put down the bong and start drinking tea and hot chocolate to relax yourself. They're legal.

r

You're getting things confused. The door being open doesn't make a difference, unless the officers see dead bodies or someone dying or being attacked through that opened door.

The "legalese" is important in law. The police need more than a "suspicion" that an individual is in need of emergency aid. They need more than a "hunch" to get beyond the warrant requirement of the 4th Amendment. If they hear gunshots or screams, or see someone hurt or being attacked they can go in pursuant to the emergency aid exception. Otherwise, they need to get a warrant. The police were not "well within their rights" in this situation.

 

[Stefka]

That is true.

The law is 'If there is suspicion of foul play or a criminal act in progress they have the right to enter any premises' (loosely translated from its legalese).

That law's been challenged a zillion times, trust me - you ain't gonna be the one hero who can challenge it to the supreme court

It's a good law. If I'm at work, and my door's wide open - check that shit out and close it before some gangbanger shits get some ideas.

r

It has already been to the Supreme Court - and their decision was contrary to your statement of the law.

Work has a lesser expectation of privacy than the home (but still a relatively high expectation of privacy). Whether the police can walk into your office through an open door depends on several different factors. It depends on how the police got into the building in the first place and whether people other than your coworkers are going in and out of your office regularly. If police are in the office building for legitimate purposes and they look through your open office door and see a pot plant, that falls within the plain view doctrine. But if your door is open (and they don't have a warrant) they cant go in and start looking around under your desk.

 

[Razorguns]

You're getting things confused. The door being open doesn't make a difference, unless the officers see dead bodies or someone dying or being attacked through that opened door.

The "legalese" is important in law. The police need more than a "suspicion" that an individual is in need of emergency aid. They need more than a "hunch" to get beyond the warrant requirement of the 4th Amendment. If they hear gunshots or screams, or see someone hurt or being attacked they can go in pursuant to the emergency aid exception. Otherwise, they need to get a warrant. The police were not "well within their rights" in this situation.

lol. Pick up the phone and call your local PD. Ask if they need a warrant if they see an open door on a house and need to investigate. You can get your answer in 15 seconds.

r

 

[Stefka]

lol. Pick up the phone and call your local PD. Ask if they need a warrant if they see an open door on a house and need to investigate. You can get your answer in 15 seconds.

r

See, this is where you are getting confused. Why do they NEED to investigate? If they heard gunshots and screaming that falls under the emergency aid exception. Then the door doesn't even need to be open, they can break in to render emergency assistance. If they just see an open door, that doesn't create any sort of immediate "need" to investigate.

Open doors are not a magic bullet. Even if a police officer has a warrant to search a house he can't just walk in if the door is open. He has to knock and announce absent exigent circumstances.

Obviously you're not tuned into the nuances of the law surrounding the 4th amendment. Neither are a lot of police officers, which is why defense attorneys love motions to suppress.

 

[Cutiebaby]

Yes the cops can go into the home due to the door being opened. If they feel as though there is a situation such as robbery or an emergency situation taking place in that home they most certainly can go into the home. As for search and seizure, they do not need a warrant for that either. Surely a judge will question why they did not approach this situation differently, however I doubt that the case will get dropped!
They went in under acceptance of the exclusionary rule of Emergency searches and they seized the pot due to plain view doctrine.
-Meaning they went into the home without a warrant because they thought there may have been an emergency situation. Then they seized the pot without a warrant due to not only the smell of it but also the plain view of it being in the home.

 

[gjohnson5]

You're getting things confused. The door being open doesn't make a difference, unless the officers see dead bodies or someone dying or being attacked through that opened door.

The "legalese" is important in law. The police need more than a "suspicion" that an individual is in need of emergency aid. They need more than a "hunch" to get beyond the warrant requirement of the 4th Amendment. If they hear gunshots or screams, or see someone hurt or being attacked they can go in pursuant to the emergency aid exception. Otherwise, they need to get a warrant. The police were not "well within their rights" in this situation.

I think that line of sight is also an exception to a warrant situation. If they see a contraband due to the door being open then I do believe they can legally walk in. This will be your problem is that they will say they saw the pot due to the door being open

 

[Metasomatized Ijolite]

Yes the cops can go into the home due to the door being opened. If they feel as though there is a situation such as robbery or an emergency situation taking place in that home they most certainly can go into the home. As for search and seizure, they do not need a warrant for that either. Surely a judge will question why they did not approach this situation differently, however I doubt that the case will get dropped!
They went in under acceptance of the exclusionary rule of Emergency searches and they seized the pot due to plain view doctrine.
-Meaning they went into the home without a warrant because they thought there may have been an emergency situation. Then they seized the pot without a warrant due to not only the smell of it but also the plain view of it being in the home.

You are wrong because there were no signs of an emergency in progress. Had they spotted someone being stabbed through a window, they can smash the door down and do what needs to be done. However there was no emergency happening in this case. The officers had plenty of time to secure a warrant before entry. That's one of the keys to this situation. The evidence wasn't going anywhere, there was no emergency, and they could have had a warrant in less than an hour. It was piss poor police work and now this violent thug is going to walk.

Personally, I'm for legalization of pot. If you could go to a tobacco store and buy it, the stuff would be so cheap it would eliminate thugs with guns from selling it.

 

[Cutiebaby]

I think that line of sight is also an exception to a warrant situation. If they see a contraband due to the door being open then I do believe they can legally walk in. This will be your problem is that they will say they saw the pot due to the door being open

exactly...The plain view..

Now isn't there an acceptance to not getting a warrant (other than the plain view) that allows them to go in because they smell the pot. That they had intentions on getting a warrant yet felt it necessary to go in ahead of time?? Is it something like the good faith?

I am not positive but I think that there is something else out there that will allow them to be able to do this other than the "emergency" scenario.

 

[1500]

The cops have PC to enter the residence and secure it. Peform a protective sweep of the residence and lock it down. They can articulate that they know that guns and other weapons of violence are the tools of the trade for drug dealers and users. They performed a protective sweep to ensure that none of the drug manufacturers were hiding and lying in wait in an attempt to harm them and then secured the residence. Everything in plain view is fair game. If they searched anywhere other than places where people could hide then that evidence would be suppressed without a warrant.

If they entered based on what i stated above and articulated it that way. they will be fine. Once the residence is deemed safe and secure, then they must secure a search warrant to further search the house. Everything in plain view is just PC for them when to go apply for the warrant.

 

[Stefka]

exactly...The plain view..

Now isn't there an acceptance to not getting a warrant (other than the plain view) that allows them to go in because they smell the pot. That they had intentions on getting a warrant yet felt it necessary to go in ahead of time?? Is it something like the good faith?

I am not positive but I think that there is something else out there that will allow them to be able to do this other than the "emergency" scenario.

That isnt the plain view doctrine. The plain view doctrine is when the police are legally in the house (ie. they already have a warrant) and they see contraband. And the plain view doctrine is limited. For example, if the police are in a house to execute an arrest warrant, and they see what looks like super nice (probably stolen) flat screen TVs, they can't go over and turn them around to get their serial numbers. The numbers are not in plain view. Even if the TVs looked suspicious they couldn't go check them out. They'd need to get another warrant.

There is no I see bad shit in the house exception to the warrant requirement without exigent circumstances. Exigent circumstances are circumstances in which getting a warrant would put the officers in danger or would risk the destruction of evidence. If you've got two cops guarding the house while the other goes to get a warrant, there isnt much of a chance of 700 pot plants just vanishing.