“SJ” a fifteen year old girl found nude pictures of herself on her guardian’s computer. She also found a hidden camera in the bathroom. She reported her findings to the police.

They performed a “knock and talk” at the residence of Jon R. Hughes. ¹

Prior to the “knock and talk” the police learned that Hughes’ mental state was very fragile and that he needed involuntary hospitalization. They did not plan to arrest him at the end of the “knock and search.” Instead they planned to get consent to search his computer and to hospitalize him.

Eventually he was arrested and raised search and Miranda issues before the Federal Court. The officers twice interview Hughes.The first time was during the “knock and search/” The court ruled that Miranda warnings were not necessary. Miranda warnings are only mandated when there is a interrogation and the person is effectively in custody. In this case the Court ruled that Hughes was not in custody. The interview occurred in his home. The police did not plan to arrest him and he was not arrested on that day. His mental state was poor. In fact he had an anxiety attack in the middle of the interview. But that standing alone does not show that the interview was involuntary.

Hughes claimed that his consent to search the computer was not voluntary due to his mental state. The court founhd that Hughes consent to search the computer or his lack thereof was immaterial. By the time the officers requested his consent he had already given them enough information to get a search warrant. Therefore under the theory of inevitable discovery his consent was immaterial.

The Sixth Circuit found that probable cause supported the search warrant in United States v. Dyer and affirmed the conviction.

A Tennessee police officer swore out an affidavit for a search warrant for a cabin rented by Stacy Lee Glance and used by Glance and Kenneth J. Dyer. The bulk of the information in the affidavit came from an unnamed confidential informant who was facing drug charges and hoping to get the charges dismissed in exchange for his/her assistance in convicting Glance and Dyer. Glance went to trial and was found not guilty. Dyer entered a conditional plea allowing him to challenge the search warrant on appeal.

The informant claimed to have seen a drug deal involving methamphetamine in the cabin. The authorities corroborated some minor details of the informant’s statement. The informant took the officer to the cabin. Cars owned by Glance and Dyer were outside the cabin. Furthermore Dyer and Glance were seen at the cabin. Dyer and Glance have criminal records for methamphetamine related crimes and Dyer had an outstanding warrant for methamphetamine from North Carolina.

On this information the Sixth Circuit found that probable cause supported the warrant. The issue here is the reliability of the information received from the informant. The problem with this is that all of the corroborating evidence involves innocent behavior. All we really know is that the informant knows Glance and Dyer. We also know that the informant has reason to provide false information since any information that he/she provides will be used to dismiss the charges against him/her or to ameliorate the sentence for his/her criminal behavior.

Last week a Federal/State task force raided two Los Angeles area marijuana dispensaries. At first blush it would appear that the Feds were violating the promises made by President Obama during the campaign and later by Attorney General Holder not to interfere with state medical marijuana laws.

While the DEA, FBI, Internal Revenue Service, Los Angeles County Sheriff’s Department, Los Angeles Police Department, Torrance Police Department and Culver City Police Department all took part in the raids, the raids appear to have been directed by State authorities with the feds only helping out. The Los Angeles Police Department applied for the Search Warrant which was granted by a Superior Court judge. This would indicate that the affidavit supporting the search warrant alleges a violation of state law. But no one involved–neither the police department or the DEA are publicly admitting what violation occurred.

The task force raided Organica Collective in Culver City, and the Overland Gardens Collective in West Los Angeles . The clubs are owned by Jeffrey Joseph. His house was also raided and he was arrested. He is now out on bail. They seized 100 pounds of marijuana, 200 live plants, and $100,000 in cash. None of this necessarily indicates anything other than a dispensary which sells marijuana to patients who have the approval of their doctors to legally possess marijuana.

The Organica Collective posted a statement on opposingview,com denying any violation of state law.

The law requires that the police file the search warrant affidavit within ten days of the search and it then becomes public. Therefore it should be filed within the next week and we will know the allegations.

When prosecutors have no other way to justify a warrantless search they claim that exigent circumstances require immediate action and that peace officers did not have time to obtain a search warrant. In United States v. Washington they not only claimed exigent circumstances but they claimed that Mr. Washington did not have standing to object to the search.

George Young rented an apartment in Cincinnati, Ohio. While he was serving a term in the local jail, his nephew, Tracy Washington was house sitting. At the time of Young’s arrest he told Washington to secure the apartment and to keep people out of the apartment. Nevertheless the apartment manager told the officers that no one, including Washington, was to be in the apartment while Young was in jail.

Early on Christmas morning the local police came to the residence without a search warrant and accused Washington of trespassing. Over Washington’s objection they patted him down and searched the apartment. Drugs, paraphernalia and a gun was found.

Washington was charged with gun and drug charges. He moved to suppress the evidence. The court granted his motion and the government appealed.

A defendant has standing to move to suppress evidence if objectively and subjectively he has a right to privacy in the area searched. If you are living in the area searched, as Washington was, you have a privacy right in the apartment. The government attempted to claim that because Young was behind in paying the rent, Washington was subject to to eviction and therefore could not have a privacy right in the apartment. But under Ohio law while he was subject to eviction no action had been taken and he continued to have a right to privacy in the apartment.

The government also argued that since he was committing criminal acts in the apartment he lost his right to privacy in the apartment. The court pointed out that this was absurd in that if this was true the Fourth Amendment would be meaningless.

Therefore the court found that Washington had standing to bring the motion to suppress the evidence.

The next issue is whether the warrantless search violated the Fourth Amendment. The prosecutor argued that exigent circumstances justified the search. The Supreme Court has found four instances in which exigent circumstances are applicable:

(1) to engage in hot pursuit of a fleeing felon; (2) to prevent the imminent destruction of evidence; (3) to prevent a suspect from escaping; and (4) to prevent imminent harm to police or third parties.

The government did not claim that any of these factors were relevant. While the Sixth Circuit has found a couple more instances where exigent circumstances exist it should only be used

As [the court has] repeatedly and consistently observed, the critical issue is whether there is a “true immediacy” that absolves an officer from the need to apply for a warrant and receive approval from an impartial magistrate

In this case the court found no great immediacy. It is true that several days before Christmas people were seen going into the apartment with a gun. But there was no evidence that the gun was being used. Drug use is a serious problem but if drug use was necessarily an exigent circumstance the warrant requirement would be meaningless.

The court particularly did not want to get around the warrant requirement since the alleged harm, trespassing is relatively trivial. As a result the Court found that the search was unreasonable and it upheld the suppression of the evidence.