Georgia Firearm Forums - Georgia Packing banner

1 - 13 of 13 Posts

·
Registered
Joined
·
3,523 Posts
Discussion Starter · #1 ·
So I heard a story today and was wondering the legality of a couple things.

A guy lives in an apartment complex. When he gets home his door is open and the police are there. Apparently there was a gas leak somewhere and they went door to door looking for it. They find drugs in his apartment and arrest him when he gets home. Is that legal?
 

·
Member Georgia Carry
Joined
·
11,727 Posts
If it was in plain sight, maybe. If they went looking for it, no.
 

·
Lawyer and Gun Activist
Joined
·
28,110 Posts
Probably a good bust under the "plain sight" rule combined with the "exigent circumstances" exception to the search warrant requirement.
You'd have to consult a lawyer and get real legal advice to maximize your chances of predicting which way this would turn out.

RELATED QUESTION: Cops get a report of a drunk driver. Witness calls 911 with an excellent detailed description of the car, license number, and what driver looks like.
Cops look up the tag number and find the person's address, the one that person gave to the motor vehicle deparment for getting his/her driver's license and last year's registration.

Cops go to that address and see that car, banged-up, parked in the driveway.

Cops open the unlocked door and go searching the house and find the person and arrest that person for DUI.

Were the cops wrong to enter the house, or did they have "exigent circumstances" because they might have thought the driver was hurt from crashing into something on the way home?

Were the cops wrong to enter the house (no warrant, no permission, etc.) or was it OK because once they saw the banged-up car they had probable cause to arrest the person for DUI, and you can't avoid arrest just because you make it home before the cops get there?

Opinions?
 

·
Banned
Joined
·
2,559 Posts
gunsmoker said:
Probably a good bust under the "plain sight" rule combined with the "exigent circumstances" exception to the search warrant requirement.
You'd have to consult a lawyer and get real legal advice to maximize your chances of predicting which way this would turn out.

RELATED QUESTION: Cops get a report of a drunk driver. Witness calls 911 with an excellent detailed description of the car, license number, and what driver looks like.
Cops look up the tag number and find the person's address, the one that person gave to the motor vehicle deparment for getting his/her driver's license and last year's registration.

Cops go to that address and see that car, banged-up, parked in the driveway.

Cops open the unlocked door and go searching the house and find the person and arrest that person for DUI.

Were the cops wrong to enter the house, or did they have "exigent circumstances" because they might have thought the driver was hurt from crashing into something on the way home?

Were the cops wrong to enter the house (no warrant, no permission, etc.) or was it OK because once they saw the banged-up car they had probable cause to arrest the person for DUI, and you can't avoid arrest just because you make it home before the cops get there?

Opinions?
They were right to check on him, however, any DUI charge would not stick because he could have got drunk after he got home....
 

·
Registered
Joined
·
4,230 Posts
gunsmoker said:
Probably a good bust under the "plain sight" rule combined with the "exigent circumstances" exception to the search warrant requirement.
You'd have to consult a lawyer and get real legal advice to maximize your chances of predicting which way this would turn out.

RELATED QUESTION: Cops get a report of a drunk driver. Witness calls 911 with an excellent detailed description of the car, license number, and what driver looks like.
Cops look up the tag number and find the person's address, the one that person gave to the motor vehicle deparment for getting his/her driver's license and last year's registration.

Cops go to that address and see that car, banged-up, parked in the driveway.

Cops open the unlocked door and go searching the house and find the person and arrest that person for DUI.

Were the cops wrong to enter the house, or did they have "exigent circumstances" because they might have thought the driver was hurt from crashing into something on the way home?

Were the cops wrong to enter the house (no warrant, no permission, etc.) or was it OK because once they saw the banged-up car they had probable cause to arrest the person for DUI, and you can't avoid arrest just because you make it home before the cops get there?

Opinions?
I would say they are wrong. They have no proof anyone is in the home. They have no proof the car was not loaned to someone. They have no proof someone did not just take the car for a joyride, then return it. Also they did not receive a physical description of the driver.
 

·
Registered
Joined
·
15,974 Posts
atlsrt44 said:
So I heard a story today and was wondering the legality of a couple things.

A guy lives in an apartment complex. When he gets home his door is open and the police are there. Apparently there was a gas leak somewhere and they went door to door looking for it. They find drugs in his apartment and arrest him when he gets home. Is that legal?
IANAL but I would say yes, legal bust. He is toast.

Wherever a cop is legally allowed to be, anything he sees in plain sight is fair game.

So the question is really did the cops have the authority to enter the unlocked apartment in order to carry out their duties in looking for the gas leak (is looking for a gas leak really the duty of the police?) and if the drugs were really in plain sight or did they actually search for them?
 

·
Registered
Joined
·
15,974 Posts
A smart LEO would probably not disturb the illegal drugs, secure the scene, and go obtain a warrant anyway if they wanted to make the bust.
 

·
Registered
Joined
·
15,974 Posts
Dear judge:

"Upon enterning an unlocked apartment during the course of my duties to protect the community from the potential danger associated with a gas leak, I observed what appeared, from my knowledge and experience as a LEO, to be a quantity of crack cocaine in plain sight on the apartment's living room table. At the time the occupants of the apartment were unknown to me. I immediately secured the scene, did not conduct any search, and came to you for a warrant."
 

·
Registered
Joined
·
1 Posts
atlsrt44 said:
So I heard a story today and was wondering the legality of a couple things.

A guy lives in an apartment complex. When he gets home his door is open and the police are there. Apparently there was a gas leak somewhere and they went door to door looking for it. They find drugs in his apartment and arrest him when he gets home. Is that legal?
Good bust.

1. The police did not go in to investigate the gas leak. The gas company did, saw the drugs and called the police.
2. The police arriving on sceen contacted apartment management to obtain permission to enter and search the unit in question. No warrant needed.
3. The police found the drugs and waited for the suspect to return.

If you rent check your lease agreement. The owner or management of a rental unit can grant permission since your control is only secondary to theirs.
 

·
Lawyer and Gun Activist
Joined
·
28,110 Posts
Not exactly. When you rent an apartment or lease a home, you're paying for privacy. You're paying for the right to exclude others, even the police (without a warrant).
A landlord cannot always give permission to cops to search your home the same way YOU could give cops permission to search your home. But this case sounds different, if the gas company reported to the landlord and cops that they found drugs there.
 

·
Lawyer and Gun Activist
Joined
·
28,110 Posts
SMN posted something very relevant about this recently. He found a recent Court of Appeals of Georgia case from the summer of 2010 which rejected the idea that the director of a public housing complex could give consent to police to search residents' homes, even though the written lease for the complex said the management could do it.
The case was BOWDEN v. STATE, and it in turn cited an older case holding the same thing regarding landlords giving consent, the "ARNOLD" case, 237 Ga. App. at page 859.

http://www.georgiapacking.org/forum...48389&p=670023&hilit=landlord+warrant#p670023
 

·
Die Hard GCO Recruiter
Joined
·
6,763 Posts
Why were the cops going door to door looking for a gas leak? Wouldn't that be the job of the gas company or apartment maintenence? If in the course of looking for the gas leak if the gas company or apt. maintenance found drugs wouldn't the LEO's still need a warrent and to investigate. If that many people were entering the apartment when the tennant wasn't home, couldn't the drugs belong to anyone?

I would say no, not a good bust.
 

·
GeePeeDoHolic
Joined
·
6,405 Posts
There was something similar in the paper recently.

Supremes hint odor of pot, sound of flushing toilet justifies warrantless entry

Synposis:
Police follow dealer after a sting to arrest him.
They lose sight and hear him go in a door.
They discover two doors.
They pick wrong door to knock on, smell pot, hear toilet flush.
Break in and arrest unrelated guy on drug charges.

"The state court said the police cannot rely on urgent circumstances they themselves create to enter a home without a warrant."

The part I didn't get.

King pleaded guilty to drug charges, but the Kentucky Supreme Court threw out the evidence against him and the conviction, ruling that the police did not have cause to burst into his home without a warrant.
If he pleaded guilty, who pushed it and how did it get to higher level that threw out evidence? I found the answer at Kentucky v. King on oyez.org I don't think I've heard of a "conditional plea" before.

King entered a conditional guilty plea; reserving his right to appeal denial of his motion to suppress evidence obtained from what he argued was an illegal search.
It's before SCOTUS now.
 
1 - 13 of 13 Posts
Top