Criminal Defense Lawyer Blog

Diligent lawyers know that there are two main ways the police can enter your home: 1) if you consent or 2) if they come with a search warrant. However, as diligent lawyers, we also know there are a couple seldom used exceptions where police can barge into your home without a warrant, and without your consent.

Protective action needed on an emergency basis is one of those exceptions.

Check out this case:
In an apartment complex, a neighbor is walking through the hallway when he suddenly smells the unmistakable odor of “death” emanating from another apartment. When the neighbor gets closer to the door, he sees large horseflies everywhere. These two observations, coupled with the fact that the neighbor had not seen the occupant of the apartment since 2007, led the neighbor to believe that the occupant might very well be dead and rotting inside.

When the neighbor knocked on the door, there was no response. Quickly, the neighbor called 911. When the officers arrived, the he relayed his observations and added that there is no way to see into the home; that he never saw any cars in the driveway; and that he never saw or heard any foot traffic from that apartment.

The officers confirmed many of the observations: the smell, the flies, etc., and concluded that it is very likely that someone may be dead or dying inside. When an officer found a window slightly cracked open, he received permission to enter from his superior and went inside.
What he saw was repulsive. A dead, decaying corpse of a dog lay in a cage.
The officer yelled but there was no answer. Still thinking that the owner may be inside and in need of medical assistance, a group of officers went into the home. No officer went through drawers or searched for any contraband; the objective was simply to find the owner of the home.
The officers did not see any blood trails, guns, bloody clothes, drag marks, or bloody trails inside the house.

The owner-defendant was eventually charged with Cruelty to Animals, a felony.
Was the entry into the home justified?

The defendant argues “no” because death does not mean emergency. And since death is final, there can be no medical emergency. The defendant also argues that in the 25 minutes that expired from when the police arrived to the time they entered the home, a search warrant could have been acquired. Finally, the defendant argues that the smell of death is not exigent and therefore the entry into the home was illegal, and the evidence should be suppressed .

Not so, says the State. The State points out that law enforcement has the right to respond to emergency circumstances and that the sanctity of life is more important than the sanctity of the home. Moreover, the issue is what a “reasonable person” would think, given the situation. The State argues that the idea that the owner may be incapacities and in need of medical attention was believable given the disarray of the home and the dead dog inside.

So who is right? Did the police overstep their authority when they went inside the home without a warrant and without consent? Was the believe that someone inside was in medical danger justified by the smell of death and horseflies? Would a reasonable person think that someone was inside the home?

At the end of the day the court sides with the State. The whole purpose of the 4th Amendment (no unreasonable searches) is to stop law enforcement from overreaching. The court held that the police acted reasonably and that their conclusion that someone may be inside, in medical trouble, was not so crazy that no reasonable person would conclude the same.

Interesting case on consent coming out of the First District.

Facts: The appellant is a passenger in a car. The car is pulled over. The appellant gives consent to a search of his person. Appellant then tries to exit the car before the search has taken place. The police officer says “sit tight,” and orders Appellant to remain in the car. Subsequent search of appeallant reveals cocaine.

What happens to the initial consent? Is it still valid? First District says “no.” The previous consent is now presumed to be invalid and involuntary.

“It is reasonable that consent can be rendered invalid or effectively withdrawn, by intervening unlawful police conduct. This would be especially true when the unlawful conduct involves a violation of the Fourth Amendment rights of an individual whose previously granted consent is all law enforcement has to justify the search.”

In applying that principle, the First District held that the illegal detention (post consent) created a taint of an involuntary search that the State could not overcome.

I agree with this holding although I don’t think it will help law enforcement be better on the street when it comes to searches and seizures. I’m sure the officer has no idea why the evidence was suppressed. Of course the key issue here was the illegal detainment. There was no reason to keep the appellant in the car because the officer had witness no crime taking place. Once the appellant was ordered to sit still, it stands to reason he no longer wanted officer to search his person.

Interesting Search and Seizure conflict between the 3rd and 4th DCAs.

The issue is the use of drug-sniffing dogs to search for drugs when all the officer has is a anonymous tip on which to go on. Is the dog sniff a search? Does it infringe on a person’s right to privacy as in Kyllo (use of infra-red sensing equipment to scan houses for heat signatures)?

4th DCA (Rabb): Dog sniff is a search because a dog, like a therma imager, is sense-enhancing technology to intrude into constitutionally-protected area of the defendant’s house.

Not so, says the 3rd DCA (Jardines): A canine sniff is not a Fourth Amendment search. A dog’s nose is not a “device” nor is it sense-enhancing technology. A dog alerts to only illegal activity, so if the dog is legally present at the house and alerts to drugs, then the sniff is not a search under the 4th Amd.

The 3rd DCA adopted the dissent’s view in Rabb and certified a direct conflict. Now on to the Supremes to figure this one out. If I were a betting man, I’d go w/ the 4th DCA on this one.

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