In a recent case south of Jacksonville, Florida, the police got a call of a suspected burglary at the house next to the caller’s house. When the police arrived, they found the defendant moving items from the house to a car parked next to the house. The front door to the home showed signs consistent with a break-in. The police determined that the defendant was the suspect about whom the neighbor called. Additionally, when the police arrived, the owner of the house was present standing on the front porch. The defendant was the husband of the homeowner.
The police officers arrested the defendant and then walked in the house to search it without getting consent from the owner. The officers referred to this search as a protective sweep search. The police officers opened a closet and found a large amount of marijuana inside. The defendant was charged with trafficking in cannabis, or marijuana.
The defendant’s marijuana trafficking charge was ultimately dismissed because the police conducted an illegal search. The criminal defense lawyer for the defendant filed a motion to dismiss the marijuana evidence because the police did not have a right to enter the house.
A person’s home receives the highest privacy protection in the Constitution. Police can only enter and search a person’s house if they obtain consent to search, have a valid search warrant or are faced with an emergency, aka exigent circumstances. In this case, the police and the State tried to argue that the potential burglary scenario provided the exigent circumstances justifying the entry into the house and the search. However, the court disagreed and found that the police did not have a legal right to enter and search the house.
When a person is arrested, the police may have a right to search the immediate area around the suspect to make sure there are no threats to the police officer. However, a police officer may not arrest a person just outside his house and use that as an excuse to go into the house without a search warrant or specific facts indicating there is an emergency necessitating an entry into the house. In this case, the police had the burglary suspect detained, and the owner of the house was present. There was no apparent emergency that authorized the police to enter the house and search it. As a result, the search was illegal, and any evidence found in that house could not be used against the defendant in the trafficking in marijuana case.
There are situations when a police officer responding to a possible crime can enter a house without a warrant or consent. For instance, in one previous case, the police were responding to a burglary call and saw the screen door kicked out and the lock broken. The residents did not appear to be home. In that case, the police were authorized to enter the home and investigate what appeared to be a burglary. If they happened to find marijuana or other illegal drugs in the house while investigating the burglary, this evidence could very well be admissible in court.