March 20, 2012

Court Says Cop’s Excuse Of Dog Eating Marijuana Evidence Is Unconstitutional

March 20, 2012
dog with marijuana

dog with marijuanaCop Says No Warrant Needed Because Dog ‘Might’ Eat Marijuana Evidence

I was on Digg earlier today, and came across a bizarre marijuana case. Apparently, a police officer claimed he didn’t need a warrant to search a suspect’s house because there was a chance the suspect’s dog might eat the marijuana that was suspected of being inside. It all started when the suspect was pulled over near his apartment for a broken license plate light (classic, ask Ninjasmoker…). The cop saw marijuana in plain view in the car, which also had the suspect’s dog inside.

After it was determined the suspect was going to jail, the suspect asked if he could put his dog inside his apartment. The cop agreed. After the officer followed the suspect to his apartment, the suspect opened the door to let his dog in, then tried to shut the door. The officer was able to wedge his foot in the door, before the suspect could shut it, apparently went into Rambo mode, and searched the suspect’s entire apartment, where he found more marijuana.

The suspect appealed the decision because the evidence was found after an unlawful search. The case eventually made it’s way to the Ohio’s Tenth District Court of Appeals, where the state argued that the cop was worried the suspect’s dog might eat the marijuana and paraphernalia that he saw on the suspect’s table when he opened the door for a split second to let his dog inside.

Network World was the original author of the article I read on Digg. The article stated, “If law enforcement sees contraband in “plain view during a lawful observation,” then it can be seized without a warrant, according to the plain view doctrine. The TSA frequently uses this doctrine “while screening persons and property at U.S. airports.” But a cop has to have the right to be there before claiming “plain-view” and the “Invasion of the sanctity of the home is the chief evil against which the Fourth Amendment’s warrant requirement is directed.” The defendant’s attorneys also argued [PDF], “The government must overcome the presumption that warrantless searches of homes are per se unreasonable by demonstrating that the search falls within one of the few, well-recognized exceptions to the warrant requirement.” Fourth Amendment blogged “the possibility the dog might eat marijuana was not an exigent circumstance.””

In State v. Alihassan [PDF], the court reasoned:

We disagree with the state’s contentions. There was no evidence presented that the marijuana and grinder were in danger of destruction or removal. Although Leighty testified he knew there had been prior disturbance calls to the apartment regarding appellant and his girlfriend, he never said that he believed appellant’s girlfriend lived at the apartment, and he admitted that people can have domestic disturbances when they do not live together. Leighty also admitted he heard no voices coming from inside the apartment, the television was not on, and there were no indications that a person was in the apartment. Although Leighty first testified that he heard no noises coming from inside the apartment, he later said he heard “noises” inside, and the noises were from an aquarium. Importantly, Leighty never testified that he believed the noises were made by people inside the apartment.

With no evidence of any third parties present in the apartment, there was no risk of destruction of the evidence. Although, conceivably, the dog could have ingested the small amount of marijuana on the table, the grinder would not have been easily destroyed.

The trial court “concluded that, even assuming that the consent was tainted and invalid, the evidence seized by the police would have been admissible under the inevitable discovery doctrine.” However, the Ohio Court of Appeals stated, “Given our finding that the initial entry was a violation of the Fourth Amendment, and the trial court’s additional finding that the subsequent protective sweep was a violation of the Fourth Amendment, the circumstances as to the voluntariness of the consent must be viewed from the perspective that the consent was obtained on the heels of two prior Fourth Amendment violations.”

In State v. Alihassan [PDF], the court reasoned:

If we were to apply the inevitable discovery doctrine to the present circumstances, the Fourth Amendment would be rendered impotent in all similar cases in which a court later determines that the police, in fact, had probable cause to perform the warrantless search. It would also encourage police to engage in their own Fourth Amendment speculation without a prior probable cause determination by a court and foster a “search-first” mentality that disregards constitutional safeguards. In essence, the foundation of the Fourth Amendment would be completely undercut by applying the inevitable discovery doctrine to every case where there is a post-warrantless search determination of probable cause.


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