Drug Use Wisconsin: Police, Search Warrants, and Drug Dealers

A hypothetical scenario analyzing the ability of the police to obtain search warrants to search the car and home of a person suspected of using and/or selling drugs. Possible case law is established by analyzing various U.S. Supreme Court cases and defining and explaining various legal terms (primarily in the area of criminal law and evidence collection).

Facts:

The Police Department believes that drugs are being used and/or sold at a certain house. One of the residents, a 40-year-old man, still living at home with his dad, has various problems that lead police to suspect that he is involved. Last year he was convicted of driving under the influence (DUI) and the last two months police have been called to the house to handle various disturbances, such as domestic violence (i.e. screaming at his father) and disturbing the peace (i.e. wild driving). He also collects disability due to mental problems associated with drug use several years ago. Two weeks ago, he received a ticket for reckless driving (i.e. wrecked his truck into the garage). This led to a confrontation with his father and a next-door neighbor. At 10:15 p.m., police came to handle the domestic violence. Despite yelling at the police as well, they did not cite or arrest him. Neighbors can testify that cars come to the house almost every day and night, and that the son sometimes stays up all night moving things back and forth from the garage to the car. Two neighbors can testify that the son admitted to them that he uses methamphetamine. Medical experts can testify as to the symptoms of methamphetamine.

Issue:

Are police able to obtain a search warrant for the son’s car and home based on the above facts?

Conclusion:

One must first restate the question by asking if there is a need for a search warrant in the first place. In most cases, there is no need for a search warrant to search a car. In most cases, there is a need for a search warrant to search a home. However, in both situations a certain level of “Probable Cause” needs to exist. In the case mentioned, the Police Department has probable cause to perform a search on the car and to obtain a search warrant for the home.

Reasoning:

Search of the Car

As the courts have interpreted the Fourth Amendment through case law, a mobile vehicle, such as an automobile, motor home, boat, airplane, or bicycle, is not subject to a search warrant. There are three types of vehicle searches where there is no need for a search warrant. The first one is The Incident to Arrest or the Belton Rule (New York v. Belton, 453 U.S. 454 (1981)). The second is The Auto Exception to the Search Warrant Requirement or the Ross Rule (United States v. Ross, 456 U.S. 798 (1982)). The third is The Impound/Inventory Search (Colorado v. Bertine, 479 U.S. 367 (1987)).

Regarding the above facts, the police will most likely use the Ross Rule. This rule requires probable cause that evidence or contraband is in a vehicle that is mobile or readily accessible to the roadway. The vehicle, its compartments, contents, and containers within are all legal to search without a search warrant. This Rule has a precedent of its own, which is in relation to the invention of the automobile and the period of prohibition. Federal agents stopped a car engaged in the transportation of alcohol. The Supreme Court established an exception to the warrant requirement for moving vehicles: when conveyance is mobile, it is not practical to obtain a search warrant because the vehicle can quickly move out of the locality or jurisdiction in which the warrant must be sought (U.S. v. Carroll, 267 U.S. 132 (1925)).

However, mere use of the Ross Rule is not enough. There are two rules to follow in interpreting “probable cause.” First, probable cause requires a reasonable belief based on the officer’s experience that the evidence or contraband would be found somewhere in the car. Second, the officer must be able to articulate the facts which led him to believe that the evidence or contraband would be found somewhere in the car. In the case mentioned, there are enough facts to support probable cause to search the son’s car, based on the son’s past driving record (i.e. DUI), run-ins with the police, disturbing the peace, and neighbors’ testimony of drug use. There is also probable cause to obtain a search warrant for his home as well (discussed below).

Lastly, there are two things not covered by this search: the trunk and a body search. The trunk is qualified, meaning nexus (i.e. a legal connection) is required, or probable cause that additional evidence or contraband would be found somewhere in the trunk. To determine if the trunk is legal to search, one needs to ask if that crime has evidence or contraband associated with the corpus delicti (i.e. body of the crime). A body search of the driver or the passenger(s) has been struck down (U.S. v. DiRe, 332 U.S. 581 (1948); Ybarra v. Illinois, 444 U.S. 85 (1979); Wyoming v. Houghton, 526 US 295 (1999)).

Search of the Home

Before the police attempt to obtain a search warrant, they should first attempt to enter the home through consent. A consent search takes place when a person knowingly and voluntarily waives one’s Fourth Amendment rights, through a “request-choice” by the officer, and allows a peace officer to enter and conduct a search. Mere suspicion or even a hunch is enough to conduct a consent search.

Knowingly means a person has the capacity and ability to understand making the choice to consent to search. People that are intoxicated or mentally incompetent cannot give consent. As the facts show, the son has admitted to being a drug user (i.e. under the influence) and collects disability (i.e. mentally incompetent). Therefore, he cannot give consent knowingly. His father can, though.

Voluntarily means a person has given consent out of his free will and not from the product of force, threat, coercion inducement, promise, deceit, trickery, or submission to authority. That means the officer must phrase the request as permission, where a person has the choice to refuse to consent. However, the police need not tell him that he has a constitutional right to refuse (Schneckloth v. Bustamonte, 412 U.S. 218 (1973); Florida v. Jimeno, 500 U.S. 248 (1991)).

One last criterion is that the person giving consent needs to have authority or standing. Authority means that the person giving the consent has ownership or tenancy rights over the area or property. As the facts show, the son lives at home and is an adult. In this situation, the living arrangement according to the law is “domestic partnership.” Therefore, either father or son has authority to give consent to search public or shared rooms (e.g. living room, kitchen, or bathroom) or his own room. No one can give consent to search another’s room.

If the police cannot enter by consent, they will need a search warrant, which is an order issued by a judge, directed to a peace officer, authorizing the search of a described location for described evidence (Penal Code §1523). A search warrant can be issued only on specified grounds (Penal Code §1524) and may be applied for in person, by telephone, by fax, or by electronic mail (Penal Code §1526). Probable Cause needs to exist here as well. However, probable cause for a search warrant needs support from an affidavit (i.e. sworn testimony) by the officer. Further, searching a home for drugs based solely on finding drugs in a car is not probable cause (People v. Pressey (2002) 102 Cal.App.4th 1178). Therefore, the elements of probable cause for the officers to obtain a search warrant follow.

The most important is the neighbors’ testimony by affidavit that the son uses drugs and that cars come and go to and from the house all the time. Therefore, they will corroborate the facts that exist (i.e. his history with run-ins with the police) and increase the chances of obtaining a search warrant by being informants. Reliable informants include citizens reporting out of a sense of civic duty.

There are several guidelines to follow upon obtaining a search warrant. The most important one that is relevant in this case is “knock and notice,” which is where police knock on the door, alert a person why a search is being done, and then enter with his knowledge. Sometimes police use a “no- knock” policy, where they enter by either opening the door or breaking it down. This is justified if police have a reasonable suspicion that knocking and announcing would be dangerous, futile, or destructive to the purpose of the investigation (i.e. evidence or contraband destroyed) (Wilson v. Arkansas, 514 US 927 (1995)). Wisconsin attempted to institute a blanket “no-knock” rule for all narcotics search warrants based upon the possibility that destruction of evidence would occur. The United States Supreme Court ruled that a universal “no-knock,” even for this purpose was not justified (Richards v. Wisconsin, 520 US 385 (1997)). No-knocks, therefore, need to be used on a case-by-case basis, where the police determine if there is definite belief that they will be put in danger (e.g. suspect has a gun) or evidence will be destroyed (e.g. drugs flushed down the toilet).

Therefore, based on the discussed case law, the police will have probable cause and permission to search the son’s car without a warrant, and have several method of searching the son’s home. If the police choose a no-knock method upon obtaining a search warrant, they need to be careful because the defense will attempt to make a motion to suppress evidence on grounds that there was no exigency to enter.

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