Wednesday, February 26, 2014
I recently commented in response to a question raised by Betty-Kath regarding the warrantless entry into Craig Wood’s house by the police to search for Hailey Owens and their use of information, which they acquired during that search, to obtain a warrant to search his house for evidence that he had kidnapped and detained her in his home.
I said I did not believe the warrantless entry would affect the outcome of the case.
I reconsider my answer today and explain why the warrantless entry could jeopardize the prosecution’s case.
Detective Neal McAmis referred to the warrantless entry into Wood’s residence in his affidavit attached to the complaint:
Officers did a safety sweep of the residence to search for Owens. When the officers got to the basement steps, they could smell a strong odor of bleach. The odor continued as they entered the basement. The officers informed me the basement floor was wet. They also said they saw bottles of bleach in the basement.
On 02/19/14, at 0128 Detective Barb obtained a signed search warrant to search Craig’s residence. Several crime scene technicians responded to the scene. In the basement the crime scene technicians located two plastic storage totes. They were stacked one on top of the other. There were papers and documents in the top tote. In the bottom tote was what appeared to be the body of a small child. The body was concealed inside two trash bags. The crime scene technicians removed the trash bags and confirmed it was the body of Owens.
Detective Barb also applied for a second search warrant of the residence a little over 12 hours later during the afternoon of February 19th. In that affidavit, he described what he found during the search earlier that day, including firearms, video cameras, a computer, digital storage media, child pornography, cleaning fluids, journals and bedding, and he requested a search warrant authorizing him to search for and seize those items.
He did not mention the earlier warrantless search.
The issues the court may have to consider before this case goes to trial are whether the initial warrantless safety sweep of the residence was unlawful and, assuming for the sake of argument that it was, the second issue is whether any information obtained during that search was used to obtain a subsequent search warrant.
If so, that may invalidate the search and result in the suppression of the evidence seized. Without that evidence, the prosecution might not be able to convict Wood.
The general rules:
(1) A search of a residence without a warrant is unlawful unless an occupant voluntarily consents to the search or exigent circumstances exist that would make it impractical and unreasonable to obtain a search warrant, such as an entry in hot pursuit of a fleeing suspect (see United States v. Santana, 427 US 38 (1976)), an entry to prevent the destruction of evidence (see Kentucky v. King, 131 S.Ct. 1849 (2011)) or an entry to prevent someone from suffering imminent injury or death.
(2) The police cannot use “fruit from the poisonous tree” (i.e., information obtained unlawfully) to establish probable cause (i.e., reasonable grounds) to believe that a residence contains evidence of a crime.
Consent, hot pursuit and preventing the destruction of evidence are not applicable.
Thus, the question the court will have to resolve is whether the warrantless entry was reasonably necessary to prevent someone from suffering imminent injury or death.
The problem for the prosecution is that the police arrived at the residence before Wood arrived. They were waiting for him and when he arrived, they pulled into his driveway and parked behind him, preventing him from backing out. They took him into custody and transported him to the station house for interrogation.
The warrantless entry into his residence took place after Wood was removed from the scene.
With their only suspect in custody and no particular reason to believe that Hailey Owens was in the residence and in any immediate danger, if she was, I am not seeing any evidence that would justify a warrantless entry into his residence to prevent her from suffering imminent injury or death. Absent probable cause to believe that, the warrantless entry would be unlawful and any evidence seized as a result of it would not be admissible.
I also do not see them acting as though they believed she was endangered in the house. Moreover, the absence of any reference to the warrantless entry in the second affidavit for search warrant appears to have been a deliberate omission that the defense probably will interpret as deliberate.
The prosecution may be able to navigate its way through this potential disaster, if it can satisfy the court that (1) no information obtained during the warrantless entry was relied on to obtain a search warrant, or if they did rely on it, they relied on other independent evidence with which to establish probable cause, such that they would have discovered the evidence they seized even if the information obtained during the warrantless search were excised from the affidavit for the first search warrant that was issued at 0128 on February 19th.
How this potential issue is resolved may determine the outcome of this case.