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Consent, search, and eviction

At first glance, the result in the 8th District's decision a couple weeks back in State v. Hertzel looks straightforward:  The police were called to woman's home on her claim that her grandson had used her car without permission.  Although the car had been returned by the time the cops showed up, the woman told the officers that her grandson lived in the house, but that she'd given him an eviction notice a couple of weeks before because he'd failed to consistently pay rent and had caused her other problems.  She asked the police to remove him, and they obliged, escorting the young man to his room to get his things.  Once in the room, the officer sees some strange chemicals in the room, then spots a crack pipe on the dresser and... well, you've seen the end of that movie, haven't you?

The court had no difficulty upholding the search, finding that

On the evening of appellant's arrest, Hartman specifically asked Officer Greenway to aid her in removing appellant from her home. Greenway did not enter appellant's room with the intent to conduct a search -- his only purpose was to enable appellant to pack his belongings and then safely escort him out of Hartman's home.

Unfortunately, the decision completely ignores several questions, the first being whether the grandmother had the right to demand that defendant immediately vacate the home.  As anybody who's ever handled an eviction case knows, serving an eviction notice is merely step one in getting rid of a tenant:  you then have to file the forcible entry action, get a judgment, get an order of restitution, and have the bailiff throw the defendant's stuff out on the treelawn if he doesn't move out by the latter date.  There doesn't seem to be any dispute that the defendant was in fact a tenant, and if the grandmother would not have had the legal right to forcibly remove him from the premises at that point, it's hard to see how she can legitimately enlist the police to do that for her.

Even assuming she did, it's not at all clear that the police had the right to accompany him to his room.  There was no allegation that the defendant had consented to this, and the officer's justification for doing it -- that the grandson "exhibited odd behavior in the past, and he had a very silent reaction to his grandmother's order to leave" -- falls miles short of probable cause.

Then again, there are worse results than Hertzel out there for this type of situation, like this one from the 2nd District a few years ago.  The defendants were staying in a motel, and the motel owner decided that he didn't want them there, so he called the police to help him remove them.  The cops went along, the manager told the people to get out, and after about twenty seconds the police went in to escort them out, and found drugs.  Despite the fact that the people had paid their bill up to that point, the court held that their tenancy rights were immediately terminated when the manager told them to leave, and thus they had no possessory or privacy interest in the room when the police entered.  Now that's a bad decision.

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