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Anatomy of a search

Here's the bar exam question:   An apartment building has a water leakage problem, so the owner provides everybody with notice that the apartments will be inspected on a certain date.  On that date, the owner, the property manager, and a plumber go to Jeremy's apartment.  He isn't in, so the three enter the apartment, and find a bag of marijuana and a pipe on the table.  The owner contacts his attorney and tells them of the discovery.  The attorney calls the police and tells them that his client found suspected marijuana and a pipe in an apartment.

Somehow, this gets conveyed by police dispatch to Officer Rebraca that "an exorbitant amount of marijuana with plants" was found in an apartment.  Rebraca goes there, and the owner leads him to the apartment, where he points to the bag of suspected marijuana.  Rebraca doesn't see any marijuana plants.  Meanwhile, back at the ranch, Detective Kappa also received the call about the "large number" of marijuana plants.  He contacts Rebraca and asks if the plants are visible, and Rebraca tells him they aren't.

Nonetheless, Kappa prepares an affidavit for a warrant, stating that that the landlord had "observed a purported large amount of marijuana plants in plain view," but noting that Officer Rebraca, who was on the scene, had seen only a baggie of marijuana and a pipe, and "was not aware than any marijuana plants had been located."  A search warrant is issued, a search is done, and a small amount of cocaine, five Percocet pills, and a revolver are found.

Good or bad search?  The 8th District provides the answer last week in State v. Callan.

As the unnumbered legions of my regular readers know, given that the 8th District is the most 4th-Amendment friendly in the state, if not the country, the answer is "bad search."  But the case is worth a look, simply because it does an excellent job of wading through the issues.

First is the issue of the trial court's failure to "state its essential findings on the record" when "factual issues are involved in determining the motion."  Not a problem, concludes the court, because "the record provides a sufficient basis to review appellant's assignments of error."  Shorter version:  the facts aren't really important, the law is, and the appellate court reviews that de novo. 

Next up is the issue of Rebraca's search, which was done without a warrant.  Two exceptions to the warrant requirement might apply:  consent and exigent circumstances.  Consent is no good; while the officer searched the apartment at the invitation of the building's owner, a landlord can't validly consent to the search of a tenant's apartment.  The state argues that the entry and search was necessary to secure the drugs, and thus the exigent circumstances applied.  But "when police officers seek to rely on the destruction of evidence exception in justifying a warrantless entry, they must show an objectively reasonable basis for concluding that the loss or destruction of evidence is imminent."  That's a tough sell, given that Callan wasn't in the apartment, and there was nothing to indicate that anyone even knew of the police presence.  So exigent circumstances goes bye-bye, and Rebraca's search is unlawful.

But what about the warrant?  Callan argues that the warrant was tained by the information obtained in Rebraca's warrantless -- and hence unlawful -- search.  And he's right:  "Following an illegal entry, evidence obtained pursuant to a search warrant must be excluded unless the police based the warrant affidavit on a source of information independent from the unlawful conduct." 

This is where we run into a problem with the opinion.  It notes that Kappa's affidavit "presented information derived from the illegal search," namely, that "a police officer confirms that the suspected drugs are marijuana and the pipe is a pipe commonly used to smoke marijuana."  Well, that's true, but what if Kappa had merely stated that the building owner and several others had observed the marijuana?  It's not clear that the affidavit gained that much more by the addition of the fact that a police officer had also seen the marijuana.

The problem was that the affidavit did not merely say that; it also included the allegation that the building owner and the plumber "observed a purported large amount of marijuana plants in plain view."  Kappa knew that this wasn't true; he was familiar with the apartment layout from a previous unrelated investigation, and he knew that if Rebraca couldn't see any plants, it was because there weren't any.

The state at this point makes the argument that Kappa didn't vouch for the veracity of this information, but merely included it to explain why the police were investigating.  That's a bit disingenuous, and takes us back to the question of whether a warrant would have been granted merely upon the statement that the building owner and a plumber had seen the marijuana.  The quantity of marijuana involved was a minor misdemeanor, and it's at least questionable that a judge would have issued the warrant based on that.  Plants, though, is another matter.  Since Kappa knew the information was false, inclusion of it in the affidavit was "at least. . . a reckless disregard for the truth," raising a Franks issue.  (In Franks v. Delaware, the Supreme Court held that the inclusion in an affidavit of an allegation that the affiant knew was false, or was reckless in that regard, would void the warrant.)

But we're not done yet.  The opinion then discusses the inevitable discovery doctrine, which essentially holds that an illegal search can be saved if the illegally-obtained evidence "would have been ultimately or inevitably discovered during the course of a lawful investigation."  Why the court raises this isn't clear, considering that (a) the state didn't raise it below, (b) it didn't raise it on appeal, and (c) it would only apply if the state could show that the police "were attempting to get a warrant independent of the warrantless search."  That's completely inapplicable here:  "no investigation independent of the illegal search was under way, and no attempt was made to obtain a warrant without information garnered from the illegal search."

One thing the decision doesn't do is address the good-faith exception to the warrant rule.  This may be because the state didn't raise it, or because the reckless falsity regarding the "plants" foreclosed that argument.

Overall, it's a solid decision.  And again, the result is compelled by the lack of knowledge on the part of the police of fundamental 4th Amendment principles.  The fact that a landlord can't give consent to enter a tenant's apartment is black-letter law at this point.  What if the affidavit had recited simply what police dispatch had conveyed to Kappa?  Even though the allegation about the plants it turned out to be false, that wouldn't affect the validity of the warrant; it was Kappa's knowledge that Rebraca had gone to the apartment and hadn't seen any plants that vitiated the allegation.  Once Rebraca walked through that door, it was going to be very difficult to come up with a valid search warrant under those circumstances.

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