Good search or bad search.

[PHXCOP]

I was challenged by a neighboring dept Lt following a search I conducted recently. The following is a summary of my encounter.

While on patrol in an area rampant with shots fired calls I responded to a call of shooting only 2 blocks away. On my arrival I contacted the victim who had sustained a single gunshot wound to the arm. I rolled fire and while I was gaining info for responding units I was told by the victims girlfriend that the shots came from a house only two yards away from where I was. To make safety even more of an issue the shots allegedly came from a doorway that was facing where I was. Being the only unit on scene at this time I sought cover for myself, the victim and his girlfriend around a hardended steel dumpster. As I was updating responding units of the potential hazard of the doorway gunman I heard a series of shots coming from the yard of the house in question. At this time an air unit came overhead and observed 7-10 subjects run into the same house.

I set up a perimeter and stayed behind cover waiting for a responding supervisor. Once my Sgt arrived, we had the air unit overhead call the subjects out over the P.A. system. 8 men came out and were taken into investigative detention by an arrest team. They all said that nobody was shooting guns and that there was nobody left in the house. We formed a team and tactically approached the house with bunkers. Did a knock and announce and began a search of the house. We found nobody in the home. However while in the home we found, in a bedroom, on the floor several assault rifles, approximately 50lbs of M/J and lots of measuring equipment. (triple beam scales, digital scales etc.) A large quantity of baggies and about $3000.00 in cash. As well as some crappy pistols all smelled of fresh burn. We finished our search and took it all as evidence, we then drafted a search warrant for the entire home.

I was approached by a Lt from another dept who said that my search was unjustified and I was sure to lose my evidence in court.

Please take the poll and refer to my attached reply for justification.

[PHXCOP]

We conducted a good search.

Our justification on the search was comprised of the following reasons:


1. We had extreme tactical exigency.

We could not safely investigate our shooting scene with the risk of being sniped ourselves. This was reinforced by the victim's girlfriend's statement of knowing where the shots came from and having seen the muzzleflash from the doorway of the house.

2. We were unsure if there was possibly a wounded/killed subject in the house as well.

The air unit observed the men running into the house after the shots rang out the second time, making it unclear if there was a second shooting victim possibly in the house. So once we were in the house to check for wounded...

3. Plain view exception to the search warrant rule.

Once in the house again carefully looking for a potential remaining shooter/outstanding wounded, who could be inside the house. Then we come across all the contraband in the bedroom. Since we had a lawful reason to be in the home, and the contraband was in a place that a gunman/wounded person could be in (i.e. not in a desk drawer) it is indeed a good search.

4. Limited scope of the search.

Our search was limited to areas where a person could be concealed. We were not looking through desk drawers and inside of toilet tanks. We looked in rooms and areas- again where a person could hide. Clearly a person could be in a bedroom. Then OOPS... we found your stash. Right there on the bedroom on the floor. Monte Burns might say "excellent".

5. Draft a warrant for the rest of the house.

self explanatory.

so does anyone else see it a different way? I would like to hear what you all think...:p

[Delta_V]

It looks like a good search based on the emergency situation exception.

IMO, plain view doesn't factor into the situation at all. The plain view doctrine focuses mainly on inadvertent discovery. The discovery in your case was not inadvertent...you were actively searching for contraband/suspects.

[LeeRoy]

Originally posted by PatrickM98
It looks like a good search based on the emergency situation exception.

IMO, plain view doesn't factor into the situation at all. The plain view doctrine focuses mainly on inadvertent discovery. The discovery in your case was not inadvertent...you were actively searching for contraband/suspects.

PHX is more correct here Patrick. There is an exigency that allows you to conduct a protective sweep of the home looking for persons. The sweep is twofold. First you are checking for armed persons who may be a threat. Secondly since a search warrant of the home is needed you can sweep the home for all persons in order to prevent destruction of evidence.

A protective sweep is not a search for evidence, it is a search for threats. During that sweep in plain view the marijuana and weapons were observed. Items seen in plain view where you have a lawful right to be can be seized.

Once you have performed your protective sweep you must obtain a search warrant for the home (as you guys did) to conduct a true search of the home.

Good job PHX. Glad none of that second volley of gunfire found you. What rationale did the Lt. give for saying it was a bad search? Sounds like he hasn't been doing real police work for a very long time.

I noticed one person voted bad search. I'd be interested if that is there belief based on the law or there opinion on they way the law should be?

[Delta_V]

LeeRoy,

I guess I have a different understanding of the emergency situation exception. It is obvious that they had the right to search the house under the mentioned circumstances. What I understand (Warden v. Hayden, 387 U.S. 294) is that any items incidental to the crime may be siezed. This would mean plain view nonwithstanding, they had the right to search the residence for weapons.

(Brennan, J.) (1) Neither the entry without warrant to search for the robber, nor the search for him without warrant, was invalid, since under the circumstances of the case, the exigencies of the situation made that course imperative; (2) under the Fourth Amendment no distinction exists between merely evidentiary materials, which may not be seized, and those objects which may validly be seized, including the instrumentalities and fruits of crime, and contraband

So basically, if the officers knew that the suspect came from that house, they could have continued the search (under the emergency situation exception) to find firearms. While the guns and drugs were in plain sight, that appears to be a moot point. They could have looked under matresses, in drawers, and any other place where firearms could be hidden...all under the protection of the emergency situation exception since they were looking for 'instumentalities of the crime.'

State vs. Dempsey, (947 P.2d 265) continues to show that the searching under the emergency situation exception is not limited only to looking for people.

I wholeheartedly agree that a good search was conducted. I just don't think the plain view doctrine needs to apply. They would have been as justified if they found the drugs in a nightstand while looking for the weapon used in the shooting.

[PHXCOP]

Thanks for the kind words guys. Yeah the Lt from "another" dept hasnt worked the road as a troop in a long time and is quite used to micromanaging his men (and women):)

But all said and done, my sgt said that he is going to submit a recomendation for a commendation for my quick thinking. I dont think Ill get it but itll look good having been recomended for it for my file.

[AZ-K9]

Looks good to me, however there is one slight problem. I noted you said the crappy pistols "smelt" of recent firing, suggesting you examined the items during the initial entry. This might cause a problem, in the sense you manipulated evidence to gain additional evidence, all without the benefit of a warrant. Be prepared to answer why. (Had to ensure the firearm was "safe", removed from room, etc)

[TC]

"Exigent circumstances" is the key. I vote good search.

[PHXCOP]

thanks TC, Being a booter, I was glad it went the way it went. Further I was glad I was able to process everything as it happened...

Everyone has been really constructive in my search, all except for the one person who thought it was a bad search. Thanks for all the good words. Im sure a lot of this goes on with my readers, i just hope everyone can keep their heads down...

[jeff92k7]

Originally posted by PHXCOP
But all said and done, my sgt said that he is going to submit a recomendation for an accomadation for my quick thinking.

WOW! You're going to get a hotel room for your quick thinking. That's awesome. Seriously though, I think the word you were looking for was "commendation".

Oh, and it was a good search. Unless they hire Johnny Cochran, your evidence will hold.

[PHXCOP]

thanks jeff

dotn thinke or tyep well whne im teird. although a hotel room would be sweet.

[knutson]

I think that it would be a good search based that you were advised by a girlfriend that shots came from adjacent apartment and the observation of the police helo that numerous suspects were seen running into the house. As long as you only searched for a person that was reasonably in a area (closet, under sink, bedroom, etc) and not in dreser drawers or 'elephant i a matchbox' it should be justified. The Lt. was probably ****ed that he was not asked to come and play.

[Phillyhopeful]

I'm not a cop (yet, going through Philadelphia's application process now), but I still think it was a good search, because, like you said, you were sweeping the house to locate any potential threats to your life or the lives of the victim/girlfriend. IMHO, anyone who says it is a bad search obviously does not care for Officer or public safety.

You had a right to search that house to be sure no one shot at you while you interviewed the guys that willingly left the house. You were told that shots came from that house, and the Police Heli told you they saw several people running into the house after subsequent shots were fired. I'd say that is enough to keep this a legal search.

[BrickCop]

It's good, this scenario was not even close for me.

I do agree with a previous post that you always have to be ready to explain your actions during the protective sweep, ie: smelling the gun/barrel. A PITA defense attorney could blow smoke that you were conducting an investigation (search) without a warrant at that point.

Excellent job.

[flatbadge]

I think you definately had a legal right to enter the house and secure it. You also had a right while in the house to search anywhere a suspect could be hiding. After that a search warrant or other means, i.e. a probation/parole clause,or consent should have been used to "search" and sieze the contraband.