So, last night I made a trip to our local mall to pick up a new suit during the post-Christmas sales. (In case you're wondering, I settled on a gray pinstripe three-piece.) As I was leaving the store I noticed an information booth -- more of an alcove, actually -- for our local police department, set into the wall next to the food court. It's not terribly informative, though; it consists mostly of large photos of local cops doing coppish things. I noticed one in particular: a photo of the county S.W.A.T. team doing manly stuff with automatic weapons. These sorts of things always intrigue me. From what I can tell, the vast majority of S.W.A.T. officers never do anything "high-speed" in real life, so it always amuses me to see them hanging upside-down from rappelling ropes outside windows, clad in more gear than the average Marine infantryman in Fallujah. So I went over to check out the photo.
When I was finished giggling, I noticed a single sheet of printer paper hanging on one of those bulletin boards with the glass doors and cheesy locks that deter lackadaisical vandals and no one else. I went over to examine it, and it was a write-up for the Prince William County officers of the month. (For June, 2004, no less!) Ah-hah, I thought. This could be interesting. Let's see what great things our public servants have been doing on our behalf.
Well, it turns out that they've been ignoring the Fourth Amendment on our behalf. And when they do, our government rewards them by proclaiming them officers of the month!
The basic story was this: Dispatcher receives a 911 hang-up call from a residence. Dispatches officers to the residence. Occupant meets the officers in front of the house, shutting the door behind him. (It's June in Northern Virginia. I'd shut it, too: I don't pay to air-condition the outdoors.) The officers find him "nervous" and consider him to be making "furtive gestures," so one of them decides to enter the home to conduct a "protective sweep." Of course there's no particular reason -- other than the alleged 911 call -- to believe the officers or anyone else is in any danger, and no particular reason to believe any crime has been committed or is being committed. And I thought I learned in crimpro that protective sweeps are only supposed to be permissible once the officers have already gained entry into the home pursuant to a warrant or a recognized exception to the warrant requirement. A man's home is his castle, after all; even the Supremes supposedly recognize that basic principle.
Well, naturally the cops find "smell-proof" baggies, scales and the like, and a locked door that supposedly opens into a room that the occupant has rented to a family member. He claims not to have a key.
Based upon what they saw when the entered the house the cops get a warrant, search the place, and discover that Occupant is farming marijuana in his house. They seize "45-50 high-grade marijuana plants."
Interestingly, the write-up offered no explanation for the 911 call. Occupant apparently was home alone. The [alleged] call [presumably] came from inside his house. Are most pot farmers really so stupid that they accidentally dial 911 while fertilizing the crop, then hang up on the dispatcher? Hmmm . . .
Well, I thought, that can't be right. Surely all that evidence will be excluded; the cops entered the guy's house without probable cause and without a warrant. He was energy-conscious and didn't enjoy talking to cops. So what? My boss fits that description. Where's the exception to the warrant requirement in this fact pattern?
Well, it turns out that Occupant probably is screwed. I haven't found any directly-on-point Virginia case but, at this very moment, in another browser tab, I'm looking at an Idaho case which seems to hold that a 911 hang-up call constitutes an exigent circumstance per se. (State v. Pearson-Anderson, 41 P.3d 275 (Idaho 2001).) And there's a Michigan case (People v. Beuschlein, 630 N.W.2d 921 (Mich. Ct. App. 2001)) that seems to go the same way, although the facts there were a little more damning.
So here's the rule, folks: If the cops think you're a bad guy but don't have probable cause for a warrant, they can simply arrange a fake 911 call, show up at your house, and enter it to conduct a "protective sweep." They may not need the dispatcher to be in cahoots with them, since, I'd guess, the dispatcher probably won't be called as a witness at trial. But if they did need or want a dispatcher, I'm sure they'd have no trouble finding a cooperative one.