Can detectives come into my home to do a "protective security sweep" to make sure no one else is home before the warrant arrives
I was arrested for cultivation of marijuana. The detectives came in without a warrant and din't come up with it untill 4-5 hours later. Now they are saying that they only came in to do a prospective security sweep, and as part of the sweep they went into the grow room which they said was wide open (the door was closed and opened by them). I told them they couldn't come in without a warrant but they did anyway and there was no exigent circumstances.
Attorney answers (3)
Shawn Alan Arnold
Reputation Level 12
Answered over 2 years ago.
Criminal Defense Attorney in Jacksonville, FL.
Entry and searches of a home are among the most litigated issues in criminal law. In short, the Supreme Court has stated that the sanctity of the home provides more protections against unreasonable search than any other place. The explanation given by the detectives sounds rather suspicious. The question that I have based on the limited facts you provided is how did they get into your house--were they invited in, knock down the front door, sneak in, etc.
Whether there was consent to enter, whether there were exigent circumstances which allowed the entry (extremely rare) or whether they were allowed in consentually will determine whether it was a good search or not.
We have litigated this issue numerous times throughout Florida and Georgia. Choose a law firm that has significant experience with these issues. If we can help, let us know.
1 person marked this answer as good
William Robert Jay
Reputation Level 11
Answered over 2 years ago.
Violent Crime Lawyer in Orlando, FL.
Obviously there are going to be factual disputes between you and law enforcement as to what happened. As the other attorney stated, whether or not their actions will be deemed "legal" is a complex legal analysis which you should have handled by an experienced attorney. Generally speaking, to search one's home,a warrant is required. There are several exceptions, some of which you discussed in your facts (plain view, protective sweep). The best way, I think, to look at the "protective sweep" is to look at it like a "pat down" (Terry stop). They have to have reasons to think your house is dangerous, just as they would have to have grounds to think someone has a weapon, before they do a pat down on them. This is a lesser intrusion than a full search, and therefore requires less justiication. So, yes, they can do a protective sweep of your house and "seize" it while they go and get a warrant--but they will still have to have sufficient grounds to have done so, albeit less than they would need to SEARCH your house without a warrant. This is a very fact specific analysis that your attorney will have to go through.
1 person marked this answer as good
Alan James Brinkmeier
Reputation Level 20
Answered about 2 years ago.
Lawsuit / Dispute Attorney in Chicago, IL.
When can the police search my house without a warrant?
For the police, there are four circumstances that a warrant is not required to search your house. 1. Search consent 2. Doctrine of plain view. 3. Search incident to arrest. 4. Exigent circumstances search.
Background
A search warrant is a judicial document that authorizes police officers to search a person or place to obtain evidence for presentation in criminal prosecutions. A warrant is based on "probable cause" of either criminal activity or contraband at a place to be searched. If convinced he or she will issue and sign a search warrant—a court order that authorizes police to search a location like your house for specified objects at a time specified. For the police, there are four main circumstances that a warrant is not required to search your house:
Search consent.
If the person in control of the property consents to the search without being coerced or forced, a search of the house without a warrant is valid. Police do not have to tell you that you have the right to refuse a search. You do have that right. The Supreme Court recently ruled that one spouse cannot consent to the search of a house on behalf of the other spouse.
Doctrine of plain view.
If police already has the right to be on your property and sees contraband or evidence of a crime that is clearly visible, that object may be seized and may lawfully be used as evidence. As but one example, if the police are in your house on a domestic violence call and see a lot of drug paraphernalia on the windowsill, those items can be seized as evidence.
Search incident to arrest.
If you are in the process of being arrested in your house, police officers may search for weapons or to find any other accomplices to protect their safety (also known as "protective sweep"), or the police may search to prevent your destruction of evidence.
Exigent circumstances search.
This refers to emergency situations. It is thought that if the process of getting a valid search warrant could compromise public safety or could lead to a loss of evidence a search can go ahead. This situation encompasses "hot pursuit" in which a suspect is fleeing police and is about to escape. A recent Illinois Appellate Court decision ruled that police officers may enter a DUI suspect's home without a warrant on the theory that important evidence, namely the suspect's blood alcohol level, may be lost otherwise.
You’ll need a lawyer to challenge a warrantless search of your house. Check with a lawyer in your locale to discuss more of the details.
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