I finally figured out how to win the case on the way in to work the morning of the hearing.

My client Antwan’s tale of woe was simple.  Cops investigating a stolen motorcyle case had gotten a tip that the bike could be found in the yard of the Antwan’s house, where he lived with a couple of other guys.  While the cops were looking the motorcyle over, someone came out of the house and told them that the owner would be back shortly.  The cops did a “protective sweep” of the inside of the  house, by which time Antwan had returned.  They told him they’d seen some drug packaging in his room, and he admitted using heroin.  They asked him for consent to search the house, saying that they’d get a warrant if he didn’t.   He did.  They found the heroin in his room, plus a gun he wasn’t supposed to have because of a prior felony conviction.  The upshot:  he was looking at counts of receiving, drug possession, and weapons under disability.  The big problem was the gun spec the prosecution had tacked on to the possession count:  that meant mandatory prison time.

At the first pretrial I told the prosecutor, young kid named Keith, that if he’d drop the gun spec, I’d plead my client and spare Keith the agony of sitting through a suppression hearing where I would make it painfully clear that this was the 7th worst search in the history of the 4th Amendment.  I was hoping he’d buy it.

In certain respects, it was.  The “protective sweep” was completely bogus.  This has become the flavor of the month in certain police circles, and was first established back in 1990 in Maryland v. Buie, where the police had arrested an armed robber inside his house, and conducted a quick search of the basement, from which he had emerged, to determine whether anyone else was present.  (The robbery had been committed by two people.)  The Court held that the search was proper since the officers possessed a reasonable basis that there might be others in the house who posed a danger to them. 

But that’s a far cry from what happened here:  the police were outside the house, and there wasn’t even an arrest.  There some nice law, like this case and this one, holding that even if an arrest is made within a house, the right to sweep isn’t automatic:  the police have to show that they reasonably believe there’s a danger.  No way do they do that here. 

The consent issue is a bit more of a problem.  Consent obviates the necessity for a warrant, but the consent has to be “voluntary.”  There’s a lot of case law out there saying that the cops telling you they’ll get a warrant if you don’t consent doesn’t make the consent involuntary.  But there’s some nice cases, like this one and this one, saying that the result is otherwise if the police tell you they’ll get a warrant when they actually don’t have sufficient probable cause to get one. 

That’s the real issue:  did the police have probable cause to get a warrant, even without the protective sweep?  The problem was that they weren’t merely investigating the stolen motorcycle; the owner claimed he’d also had some saddle bags on it, and a laptop inside that.  If the police find a stolen motorcyle in a yard, does that give probable cause to believe that other items stolen with the motorcyle might be in the house?  And would the police have a good faith basis in believing that the warrant was valid if a magistrate issued one on that basis?

So as I was pulling in the parking lot that morning, I realized the way around that:  ignore it.  I’d checked the inventory, and sure enough the laptop and the saddle bags were found inside the house.  I’d cross-examine the cops on what they found in the house, get them to acknowledge that they would have included all that in the affidavit for the warrant, and leave the sweep alone.  Then in argument I could focus on the sweep and the fact that everything the police had observed during it would have found its way into the affidavit, which made it all bogus.  The End.

So I go up to court, and run into Kevin, who has good news and bad news.  The bad news is that he figured it out, too; he was going to argue that the evidence would have been inevitably discovered, because the police could have gotten a warrant just on the basis of finding the motorcyle.  I gave him credit for that; I’ve known a fair number of prosecutors, judges, and even defense attorneys who wouldn’t know the inevitable discovery doctrine if it crawled into their lap and called them Daddy.  There’s an argument it doesn’t apply; most of the cases where it’s been used, like this one, involve situations where the police actually did go out and obtain a warrant.  But it makes my life more complicated. 

The good news?  Kevin agreed that the search was a close call, and had gotten the file remarked to take out the gun spec.  I talked it over with Antwan, and explained he was no longer looking at mandatory time.  He wasn’t out of the woods; he had a record, and the judge indicated she was singularly unimpressed with the drug/gun combination.  But she’s fair, Antwan hasn’t been in trouble for seven years, he’s had a full-time job for the last three, and has already on his own started getting treatment for the drug problem.  And if we do go forward on the motion, the judge is smart enough to pick up where Kevin’s coming from.  So he takes the deal.

I almost wish he hadn’t.  Would’ve been fun.