Warrant for arrest not search....

[dcraig84]

What is the name of your state (only U.S. law)? Pennsylvania

The cops came to home with an arrest warrant for my husband. The officer asked if he could come in. My husband stepped between the door and the officer and asked what it pertained to. The officer asked his name and said i have a warrant for your arrest. He then walked my husband into the house and placed him in handcuffs and began to look around. My husband then asked if he could put his shoes on so i put them on for him. The officer saw a piece from a pipe and then called and got a warrant. We never gave this officer permission to enter our home. On the search warrant they said "upon entering the home the officer smelled marijuana" on the judges paperwork when he filed charges he put he smelled it when the door was opened. We weren't smoking. Is there a way to fight these charges for the paraphernalia that was obtained using the search warrant he obtained from invading our home. Also I was to understand that if you are under arrest and do not allow the officer in your home they are supposed to pull you outside to arrest you not walk you inside the house. My husband was not resisting arrest and we were fully cooperative, but they also ruined things in a house we only rent. Is there anything we can do about this

 

[xylene]

Your husband should have gone outside, immediately, when the police came.

Without shoes.

I hate to roll eyes on you, but that really sinks your case that you did not invite the officer in.

 

[CdwJava]

Your attorney can make a motion to suppress. If successful, maybe the marijuana evidence goes away.

When you say that the officer "began to look around" what does this mean? Did his head turn and swivel? That's lawful. Did he walk into adjoining rooms and start pulling open doors? That would likely be outside the scope of a search incident to arrest. So, it will really depend on what the officer did prior to locating the pipe.

Understand that even if you were not smoking it just then, the odor of marijuana is pungent and it lingers for a very, very, VERY long time. Those of us who do not smoke it can smell it on clothes, people, and in rooms, for hours and even days (sometimes longer). So, it may be a tough sell to claim that the officer did not smell the marijuana.

 

[dcraig84]

The officer walked in and started walking through my living room and looking around with his flashlight.

 

[disneykid52]

The officer walked in and started walking through my living room and looking around with his flashlight.

no lights were on when he came in?

 

[HighwayMan]

If the room was unlit then using a flashlight was perfectly legitimate. The officer needed to confirm that there was nothing laying around that could be used as a weapon against him.

 

[dcraig84]

My question is what gave him the right to come in? I thought he need at least 3 things to consider probable cause. The only light not on was the living room, the kitchen light was on and it shines into the living room really well. His paperwork for obtaining a search warrant and the paperwork that he filed the charges doesn't even match

 

[CdwJava]

My question is what gave him the right to come in? I thought he need at least 3 things to consider probable cause. The only light not on was the living room, the kitchen light was on and it shines into the living room really well. His paperwork for obtaining a search warrant and the paperwork that he filed the charges doesn't even match

No, he does not need "3 things" for probable cause.

His attorney can make a motion to suppress any evidence found. If the court rules that the evidence was not in plain view and obtained pursuant to an unlawful search, then the evidence goes away. In general, a search within the lunge area of a subject is valid. The fact that he was at the door and then told to sit down might make any such search questionable, and if the drugs were found elsewhere and not near the defendant that might add to a suppression argument. His attorney should know how to address the issue.

 

[HappyWanderer]

For a doorway arrest, can't he also do a search of nearby areas for risks? You know, people jumping in and attacking from the next room and the like,

 

[CdwJava]

For a doorway arrest, can't he also do a search of nearby areas for risks? You know, people jumping in and attacking from the next room and the like,

There still has to be an articulable exception to the warrant rule. Generally, we don't pull people out the door, we do step inside, sit them down, put them in cuffs and ask if they need a jacket, shoes, etc.

A lot depends on the articulation for the search and where the items were found.

 

[HappyWanderer]

In addition to Chimel v. California from 1969 (which is where the area where the arrested person can reach aka, "wingspan") there is Maryland v. Buie (1990) 494 U.S. 325 where an arrest within a residence can have the search include looking in "closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched.” I didn't see an additional need for an articulable reason why an attack was feared.

However, from the same case, looking any further than the adjoining rooms DO require your “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.”

That would now get to the "protective sweep" exception.

Then again, federal decisions are a lot easier then CA ones to search on the internet so CA law may be different.

 

[CdwJava]

Buie dealt with the arrest of "dangerous" felons. This element does not appeatr to be the case here.

The U.S. Supreme Court determined that if a dangerous felon was arrested inside a residence, the officer may ensure their safety by looking into "closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched," without needing any probable cause or reasonable suspicion; and conducting a protective sweep throughout the remainder of the residence, i.e., looking anywhere else where another person could be hiding, if you have reasonable suspicion, based on specific facts, "that the area swept harbors an individual posing a danger to the officer or others." (Buie (1990) 494 U.S. 325.)

Further, in CA, a "protective sweep" is a limited, quick, visual inspection of those places where a person who poses a danger to the officer or others might be hiding. (Buie (1990) 494 U.S. 325, 327; Furrow (9th Cir. 2000) 229 F.3d 805, 811.)