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General questions reguarding search & seizures

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A

anoyman

Guest
I live in the State of Kentucky, and my girlfriend and I allow my younger sister and her boyfriend to stay in a spare bedroom of ours. My name is on the lease none else's. Recently my sister was charged with possesion of marijuana, and possesion of paraphanalia. The story goes like this:
A policeman stoped by our house to take a statement from my sister about an accident earlier in the day. Her boyfriend had happened to answer the door and told the policeman he would get her from her bedroom. Apparently he had not closed the door fully and when he came back to the front door, the policeman was standing in the entryway to the house with the door wide open. It is not clear whether he pushed the door open to get a better look inside or if it just opened itself. Reguarless, the policeman said that he smelled marijuana and was going to search the house.
Question 1:
Is smelling marajuana considered "plain view" and cause for search?
He told them that a police dog was on the way and that they had better bring him anyhting in the house that contained drugs or when the dog got there it would scratch at anyhting that smelled like marijuana and that the police would not be responsible for any damage the dog did to the house. Worried that the dog would destroy our house, they brought him everything they had in the house (a few pipes/bowls).
Question 2:
If just smelling marijuana would not have been enough cause for search, is it legal for the police to threaten destruction of our propery if they did not volentier the paraphanalia?
The police searched the entire house including my office and my bedroom.
Question 3:
Do the police also have a right to search through my personal areas even know I had nothing to do with it? I have read that in cases of roommates, their seprate living spaces (bedrooms, offices and other places that are not shared by everyone) would have to have seprate search warrants.
While searching through my office the police observed that I had multiple computers networked together with a high speed internet connection, and were questioning my sister as to what I needed "all of those computers" for and if I were running some kind of internet scam. (Give me a break, I'm a network consultant and have a home lab to play with new network software). And they mentioned that they may come back with a computer specialist to "check out my computers".
Question 4:
Do they have the right to search through my files and other things that would have had nothing to do with the drugs they supposedly smelled?
Last they mentioned to my sister that now that they had evidence that they (her and her boyfriend) were known marajuana users that it was probable cause to come back and search the house for drugs any time they wanted to.
Question 5:
Is this true, if you have been previously convited for drug possesion, that the police have probable cause to search your property for drugs any time they want to?
Question 6:
I have read that a search warrant must state specifically what the police are allowed to search for, but in the case of probable cause there is no search warrant, does this mean they can basically search for anything and everything and press charges on anyhting illegal that they find? For instance things that are not in "plain view" like software that may be installed on my computer that I do not have a license for or MP3 audio files that I have downloaded but do not own right to.

 


I

I AM ALWAYS LIABLE

Guest
<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by anoyman:
I live in the State of Kentucky, and my girlfriend and I allow my younger sister and her boyfriend to stay in a spare bedroom of ours. My name is on the lease none else's. Recently my sister was charged with possesion of marijuana, and possesion of paraphanalia. The story goes like this:
A policeman stoped by our house to take a statement from my sister about an accident earlier in the day. Her boyfriend had happened to answer the door and told the policeman he would get her from her bedroom. Apparently he had not closed the door fully and when he came back to the front door, the policeman was standing in the entryway to the house with the door wide open. It is not clear whether he pushed the door open to get a better look inside or if it just opened itself. Reguarless, the policeman said that he smelled marijuana and was going to search the house.
Question 1:
Is smelling marajuana considered "plain view" and cause for search?
He told them that a police dog was on the way and that they had better bring him anyhting in the house that contained drugs or when the dog got there it would scratch at anyhting that smelled like marijuana and that the police would not be responsible for any damage the dog did to the house. Worried that the dog would destroy our house, they brought him everything they had in the house (a few pipes/bowls).
Question 2:
If just smelling marijuana would not have been enough cause for search, is it legal for the police to threaten destruction of our propery if they did not volentier the paraphanalia?
The police searched the entire house including my office and my bedroom.
Question 3:
Do the police also have a right to search through my personal areas even know I had nothing to do with it? I have read that in cases of roommates, their seprate living spaces (bedrooms, offices and other places that are not shared by everyone) would have to have seprate search warrants.
While searching through my office the police observed that I had multiple computers networked together with a high speed internet connection, and were questioning my sister as to what I needed "all of those computers" for and if I were running some kind of internet scam. (Give me a break, I'm a network consultant and have a home lab to play with new network software). And they mentioned that they may come back with a computer specialist to "check out my computers".
Question 4:
Do they have the right to search through my files and other things that would have had nothing to do with the drugs they supposedly smelled?
Last they mentioned to my sister that now that they had evidence that they (her and her boyfriend) were known marajuana users that it was probable cause to come back and search the house for drugs any time they wanted to.
Question 5:
Is this true, if you have been previously convited for drug possesion, that the police have probable cause to search your property for drugs any time they want to?
Question 6:
I have read that a search warrant must state specifically what the police are allowed to search for, but in the case of probable cause there is no search warrant, does this mean they can basically search for anything and everything and press charges on anyhting illegal that they find? For instance things that are not in "plain view" like software that may be installed on my computer that I do not have a license for or MP3 audio files that I have downloaded but do not own right to.
<HR></BLOCKQUOTE>


The [Taylor v United States, 286 US 1; 52 S Ct 466; 76 L Ed 951 (1932)] Court stated:

"Prohibition officers may rely on a distinctive odor as a physical fact indicative of possible crime; but its presence alone does not strip the owner of a building of constitutional guarantees against unreasonable search." [Id. at 6.]

Later, in Johnson v United States, 333 US 10, 13; 68 S Ct 367; 92 L Ed 436 (1948), the Court reiterated that Taylor held

"only that odors alone do not authorize a search without warrant. If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character."

Because the United States Supreme Court has held that odor alone is not sufficient to authorize a search of a building without a warrant, we hold that odor alone is not sufficient probable cause to search a vehicle. Rather, as these cases indicate, odor should be but one factor to consider in a totality of the circumstances. [454 Mich 592-593 (emphasis added).]

Three members of the Court dissented in an opinion written by Justice Weaver, stating that they would hold

that the plain smell of burned or unburned marijuana provides probable cause to search a vehicle without a warrant. [Id. at 596.]

Analysis

This Court's opinion in Taylor was erroneously decided because it confused the concept of probable cause and how it may be shown with the concept of search warrant exceptions and when they exist. [7] A two-step analysis is required. Given that Bordo's stop of defendant's vehicle was permissible,[8] one must first ask if probable cause to search existed. If that question is answered in the affirmative, one must ask if a search warrant was obtained or if a search warrant exception applied. If both questions are answered in the affirmative, there is no basis to suppress evidence seized thereafter.

The United States Supreme Court decisions in Taylor v United States [9] and Johnson v United States[10] suggest that when a qualified person smells an odor sufficiently distinctive to identify contraband, the odor alone may provide probable cause to believe that contraband is present. Thus, the odor provides a "substantial basis" for inferring a "fair probability" that contraband or evidence of a crime will be found. People v Russo, supra at 604. Here, Officer Bordo testified that he had previous experience involving marijuana investigations and that he recognized "a very strong smell of marijuana emanating from the vehicle." The trial court found the officer's testimony to have been credible. Under such circumstances, probable cause to search for marijuana existed. Thus, the first inquiry in the two-step analysis is answered in the affirmative.

The next inquiry is whether a search warrant was obtained or if a search warrant exception existed. Given that a warrant was not sought, the question is whether a search warrant exception allowed officer Bordo to search defendant's car without a warrant. The answer to this question is also affirmative because this case presents a classic example of the automobile exception to the warrant requirement. As indicated in Pennsylvania v Labron, supra at 940, if probable cause exists to believe a car contains contraband, the Fourth Amendment permits police to search the vehicle without more. This ability to search without a warrant extends to closed containers in the vehicle that might conceal the object of the search, such as defendant's duffle bag. United States v Ross, 456 US 798, 825; 102 S Ct 2157; 72 L Ed 2d 572 (1982).

The Taylor majority erroneously concluded:

Because the United States Supreme Court has held that odor alone is not sufficient to authorize a search of a building without a warrant, we hold that odor alone is not sufficient probable cause to search a vehicle. [Id. at 593.]

The flaw in this reasoning is that there is no building exception to the warrant requirement, whereas there is an automobile exception to the warrant requirement. Further, the Court in Johnson v United States specifically stated that its holding that a search warrant was required in addition to positive evidence of the odor of contraband turned on the fact that the search involved a permanent
 
D

DrunkN_MastR

Guest
geez... they found the marijuana end of story... tough luck next time be more careful
 

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