Police Search for Marijuana

The questions of the fortnight seem to be about pot. We have received many questions over the last two weeks about weed, so I felt obliged to post a generic version of the questions:

I am at a holiday party where booze and weed are present. Everyone is imbibing one or the other. Suddenly the police are at the front door responding to a noise complainant. Someone puts a newspaper on top of the weed on the kitchen table. The person who answers the door lets the cops into the house. The cops start to walk around the house. Eventually one of the police officers lifts up the newspaper on the kitchen table and sees the pot. I get charged with the pot. Was the activity of the police officer legal or illegal?

In order to enter the home of another to search or seize, the cops need a warrant. There are many exceptions to this rule and police often do fall under one of these exceptions when they enter a house. One of these exceptions is consent. In the above question, the person who answered the door “let” the police into the house, meaning they gave their consent.

Once inside the house, the police can basically walk through the house and seize any items in plain view that are contraband or dangerous, like guns or drugs. Plain view means the item(s) must be readily apparent to the naked eye. In the instant case, the weed is under the newspaper, so the cop would have had to LIFT the newspaper in order to see the week–they can’t do this.

Therefore, the marijuana should be suppressed. After the Judge rules that the weed is suppressed the District Attorney will usually withdraw prosecution in the case.

4 Comments on Police Search for Marijuana

  1. Edward S. VanBogaert // at 4:55 am // Reply

    First off, good blog. It’s my first time stumbling upon it, and it’s quite interesting.

    I do have a question on the entry above–are there rules on who can provide consent to enter? If Mr. X owns the house, do the police need his consent to enter, or can they get consent from one of his guests?

    Anyway, Happy Holidays!

  2. A third party with apparent authority can give consent to search a property. The definition of “apparent authority” would take another entire post.

    Also, the next question on your mind, should be, “what if the police reasonably believe that they have consent from someone with either authority or apparent authority, but in fact they are mistaken. Does the entire entry get suppressed?”

    Very tough question for me, although Jay & Gabe (the other contributors may disagree). In PA there is no “good faith exception” like there is in federal court, so my gut is that if the cops make this mistake, the stuff gets suppressed. But, I wonder if the good faith exception lends itself to apparent authority on consent to searches. I would be interested in what the current PA Supremes would think.

    BTW, to me, the good faith exception seminal case is: Illinois v. Rodriguez, 497 U.S. 177, 188-89, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990); stating the standard is whether a reasonable police officer would think the police action was ok.

  3. Pennsylvania courts seem to follow the federal rule exactly and DO apply a good faith exception. Brian is right to hedge bets, because of the rightward tilt of our Supreme Court. Just over two months ago, they came down with the decision in Commonwealth v. Strader, 931 A.2d 630, in which the Court essentially said that if anyone in the house gives the police permission, the police can rely on it.

    So, contrary to what you’d expect in this state, I’d say that the government would have a fairly decent chance of winning the suppression motion in the party example Brian provided. This, again, is a change in the direction the law used to move, and when I read the decision, I’ll admit to surprise. So beware: Very loose apparent authority rules in Pennsylvania.

  4. Edward S. VanBogaert // at 2:55 am // Reply

    I suppose that’s one more thing to consider when inviting guests into your home.

    It’s an interesting balance in many ways, because there’s an issue of where you draw the line–is the homeowner the authority? The people who live there? Their minor dependents? I would be of a mind to say that adult residents of the property have authority, but I’m also lack the power to set court precedent.

    If any guest or person in the home/apartment has the authority to grant entry to the police, I could definitely see circumstances where that would get messy. Individuals inside aren’t necessarily invited guests, nor do they always have the capacity to make a decision of authority. I would find it very troubling if entrance authority was given by a child, since children are typically more trusting of police officers and know less about the repercussions of search/seizure.

    I don’t typically have an affinity for illegal behaviors, but I would deny search authority to my vehicle or my apartment just to be safe.

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