Police Prevent Homeowner from Reentering Home While They Wait for Warrant
By Ken K. Gourdin
After cannabis activist Shona Banda’s young child spoke in favor of marijuana legalization at his school, child welfare authorities and police teamed up to search Banda’s home. Apparently, police lured Banda far enough from her home that they felt justified in preventing her reentry before they were able to secure a warrant to search it. See the following link, last accessed May 19, 2015: http://benswann.com/video-without-warrant-cops-block-cannabis-oil-activist-shona-banda-from-entering-her-own-home/.
As I have written before1, if components of marijuana are useful medicinally, let’s structure some methodologically-rigorous studies to isolate those components, test them under controlled conditions, and develop a body of evidence tending to show such usefulness. Let’s do that with respect to each of marijuana’s purportedly-beneficial ingredients and each of the maladies for which a high number of anecdotal reports exist regarding marijuana’s purported usefulness medically. (Yes, that’ll be expensive, but let legalization proponents put their money where their mouths are.)
Conversely, the current climate surrounding legalization of marijuana for medicinal purposes is not conducive to demonstrating its purported medical uses: one methodologically-rigorous study is worth a million anecdotal reports, and the the not-inconsiderable number of reports of “patients” sitting in “pot shop” waiting rooms in jurisdictions where medicinal marijuana is legal discussing the excuses they use to have allegedly-legitimate prescriptions filled (“I have, uhhh, anxiety issues. Heh-heh!”) don’t do legalization proponents any favors. And while recreational marijuana legalization is a separate discussion for another day, even those jurisdictions place a very low-level cap on how much a user may possess.
Still, while I don’t favor legalization, I do have concerns with how drug crime is investigated and prosecuted in individual cases. As pro-police and as pro-prosecution as I am, the United States Constitution deserves more than “a wink and a nod” from police, prosecutors, and judges, even when responding to such serious issues as drug crime. One such individual case about which I am concerned (and in which police apparently “winked and nodded” at the Constitution) is that of marijuana legalization activist, medicinal marijuana user, and Crohn’s Disease sufferer Ms. Banda.
To fully understand the case and my concerns regarding it, some background is in order. The U.S. Constitution’s Fourth Amendment protects “persons, houses, papers, and effects” against unreasonable searches and seizures, and it requires the police either to: (a) obtain a warrant signed by a judge before conducting a search; or (b) possess probable cause to conduct such a search, absent a warrant. The Fourt Amendment protects the interior of the home, the “curtilage” (or the area immediately surrounding the home, and any areas that are not visible from an adjoining area and which one would have to commit an act of trespassing to see. There are exceptions to the Fourth Amendment warrant requirement, one of which is exigent circumstances. An exigent circumstance is one which requires immediate action and under which it is not practical for law enforcement to take the time necessary to secure a warrant. For example, one exigent circumstance occurs when police reasonably believe the destruction of evidence is imminent.
Suppose something akin to the following scenario takes place. Two cops, suspecting drug activity is taking place in a certain house but lacking probable cause to enter the house, approach said house. One of them knocks on the door. The homeowner answers. Cop 1 then says:
Cop #1: “We need you to come with us.”
Homeowner: “What’s the problem?”
Cop #2: “Never mind that, we just need you to come with us.”
Homeowner: [Baffled, perhaps ignorant of his Fourth Amendment rights, and not wishing to antagonize two guys with badges and guns, homeowner begins to exit his home and follow the cops as he says, uncertainly] “Uhhh, Okay.”
Cop #1: [After the trio has proceeded some distance from the house] “Do you think that’s far enough, Hank?”
Cop #2: “Nah! He’s still in the curtilage.” [The trio then proceeds farther from the house]
Homeowner: “Look, I’m trying to cooperate. Will someone please tell me what’s going on?”
Cop #1 : “We think there are drugs in your house.”
Homeowner: [Though the stress of the moment has affected his powers of reason, and even though he has nothing to hide, the homeowner vaguely remembers something from his eighth grade civics class about police needing a warrant to search someone’s home. Mustering his last ounce of courage, he asks] “Do you have a warrant?”
Cop #2: “It’s on its way.”
Homeowner: “Well, can I go back inside until it gets here?”
Cop #1 : “No.”
Homeowner: “Why not?”
Cop #2: “You might try to destroy evidence.”
Whereupon Cop #1 breaks out his smartphone and begins playing solitaire. Cop #2, who’s not as techno-savvy as his partner, breaks out a book of crossword puzzles and a pencil in order to pass the time until the prosecutor finally obtains the necessary warrant.
It would seem that this scenario violates the Fourth Amendment in at least two ways: Number one, by restricting the homeowner’s freedom of movement for the lengthy period necessary to obtain the warrant, they have, in effect, “seized” him, and any U.S. court worth its salt should find that a protracted seizure merely for purposes of obtaining a warrant is not “reasonable.”
And number two, while police may, under the doctrine of exigent circumstances, make a warrantless entry to prevent the imminent destruction of evidence, to the best of my knowledge, there’s no case law allowing them, without a warrant, to lure a homeowner away from the curtilage of her home, then for them (without a warrant) to prevent her from reentering her home while they wait for that warrant for fear that she might destroy evidence.
Although police can restrain a homeowner’s movement while executing a warrant (or while conducting a probable cause search), they cannot restrain a homeowner while merely waiting for a warrant. I would be surprised if a court did not exclude the fruits of this search, either at trial or on appeal.
|1.||Ken K. Gourdin (January 18, 2014) “Thoughts on Medicinal Marijuana” (Blog Post), last accessed May 19, 2015 at the following address: https://greatgourdini.wordpress.com/2014/01/18/on-medicinal-marijuana/.
See also Ken K. Gourdin (January 13, 2015), “Oppose Marijuana Legalization? Prefer to Not Do Business With Those Who Favor It? You’re a Bigot” (Blog post) last accessed May 19, 2015 at the following address: https://www.greatgourdini.wordpress.com/2015/01/13/bigots-against-marijuana-legalization/.