Two Searches, One Warrant

Police have probable cause to search a home. Without a warrant, they search the home, find incriminating evidence, but seize nothing. Later that day, they obtain a valid warrant based on probable cause that existed before the initial search. They return to the home, search it again, and this time seize the evidence. Can evidence be suppressed based on the unlawfulness of the 1st search?

njd10 said:

Can evidence be suppressed based on the unlawfulness of the 1st search?

Click to expand...

What makes you think the first search was unlawful when you started out with:

njd10 said:

Police have probable cause to search a home.

Click to expand...

Anyways, if your lawyer feels that the search(es) was/were suspect, he can raise a motion to dismiss in court.

The first search was unlawful because although the police had probable cause and could have obtained a warrant, they had not done so at the time of the search.

What was the probable cause? What did they find? Did you give any form of consent?

Let's say PC was established when after receiving an anonymous tip that drugs were in the house, police knocked on the door and suspect opened the door, revealing several bags of marijuana in plain view on the coffee table. Police detained the suspect and performed a protective sweep of the house, thus eliminating any exigent circumstances. Police then searched the kitchen cabinets, finding several pounds of cocaine and a gun collection. Police then obtained a warrant based on an affidavit that mentioned only the anonymous tip and the marijuana. Police then re-searched the house and seized all items. The question is whether the cocaine and the guns can now be suppressed. No consent was given.

I think this might speak to the question: Segura v. United States, 468 U.S. 796 (1984).

What was the point of your question if you think you already have the answer? Is this a class assignment?


- Carl

Found the answer after asking the question.

Well, it might be ONE answer, but not necessarily the definitive one.

First, there is no detail in the first post that helps to evaluate the circumstances of the first search. I can conceptualize a number of scenarios that would make the first search good, or bad - depending on the details.

Second, the nature of the law in different states orfederal circuits might come in to play.

In general, if the first search was good (based upon probable cause, consent, etc.) and they discover something unlawful and outside the scope of the first search, they can go and obtain a search warrant for that.

So, if we expand upon your protective sweep idea, and in the process of the sweep they find a meth lab in the kitchen, they can freeze the scene and return with a search warrant.

In any event, we can squeeze scenarios to fit the desired end result ... the question is, what are the details here? What happened?

- Carl

njd10 said:

Police have probable cause to search a home. Without a warrant, they search the home, find incriminating evidence, but seize nothing. Later that day, they obtain a valid warrant based on probable cause that existed before the initial search. They return to the home, search it again, and this time seize the evidence. Can evidence be suppressed based on the unlawfulness of the 1st search?

Click to expand...

The real question is; why didn't you get rid of the stuff in the home after they left the first time? Just asking?