{"id":7242,"date":"2023-10-26T15:36:55","date_gmt":"2023-10-26T15:36:55","guid":{"rendered":"https:\/\/portal.bluetogold.com\/?p=7242"},"modified":"2026-09-17T06:25:48","modified_gmt":"2026-09-17T13:25:48","slug":"lawful-police-conduct-during-a-drug-investigation","status":"publish","type":"post","link":"https:\/\/portal.bluetogold.com\/?p=7242","title":{"rendered":"Lawful Police Conduct During a Drug Investigation"},"content":{"rendered":"

Our question is: Were the police lawful during this drug investigation? <\/strong><\/p>\n

This is a bit of a long fact pattern.<\/p>\n

There’s a lot to it so this is going to take a little longer than usual.\u00a0 But isn’t that why we’re here, so I can dissect the legal issues that you are facing out there every single day so that I can help you get it right every single time?<\/p>\n

So the scenario comes from an officer in Arizona.\u00a0 Remember, I’m giving my answer based on what I’m told.\u00a0 If you’re reading this, and you’re thinking, \u201cAnthony, I was involved in that, and there’s something else you don’t know or you didn’t say.\u201d\u00a0 And I think it’s important to reach out to me, whether you’re the one writing to me on this, or you are part of the investigation.\u00a0 So I’m here to help, not to criticize.\u00a0 We’re all here to learn.<\/p>\n

What were the facts of this drug investigation?<\/h2>\n

Now, this incident involves divorced parents.\u00a0 The Mom does not have custody of the kids.\u00a0 And I don’t think that according to the fact pattern, she cannot have custody of the kids.\u00a0 But the Dad has custody of her kids.\u00a0 There’s a minor and an adult child in play here.<\/p>\n

The minor child calls up Mom and says, \u201cDad has drugs. The drugs are out on the counter. Dad has passed out. And I’m afraid.\u201d<\/p>\n

Mom calls the adult son who is not home yet.\u00a0 I guess he’s on his way home or whatever, and says, \u201cHey, I need you to check on this. Does your Dad have narcotics?\u201d<\/p>\n

The adult son gets home, sees that Dad has passed out, sees the drugs in plain view<\/a>, takes a pictures of the drugs and the paraphernalia, and sends it to Mom.\u00a0 Mom calls the police.\u00a0 She shares this information with the police.<\/p>\n

What happened when officers did the knock and talk?<\/h2>\n

The officers respond.\u00a0 They do a knock and talk<\/a>.\u00a0 Dad comes out of the home.\u00a0 He’s in boxer shorts, and it’s kind of cold outside.\u00a0 But they do talk to him.\u00a0 He denies having any narcotics in the house. The deputies ask the Dad, \u201cDo you want us to come inside the house? Can we just talk inside your house since it’s cold outside?\u201d<\/p>\n

They probably want to see some plain view evidence.\u00a0 Let’s not discard that fact.\u00a0 But the Dad does invite them in.\u00a0 Once inside, the deputies start telling him what they know: that the sons, both the minor and the adult ratted out the Dad, that they’re scared that there are drugs in the house, and that his son sent a picture of the drugs.<\/p>\n

Apparently the drugs are in the bathroom.\u00a0 They cannot see the inside of the bathroom.\u00a0 Dad is still denying any narcotics.\u00a0 He also refuses consent to search.\u00a0 The deputies then detain the house, and detain him in handcuffs.\u00a0 Why?\u00a0 Because there’s a sword in plain view, there’s a screwdriver, there are weapons of opportunity.<\/p>\n

Why did they freeze the house instead of searching it?<\/h2>\n

So now they’re going to go and get a search warrant.\u00a0 They’re not going to conduct a warrantless search.\u00a0 The patrol sergeant asked for a warrant to be written for the master bathroom, where they think the drugs are, based on the information known at the time, based on the picture and the kids and what the mom said.\u00a0 Also they have the photo of the narcotics and they see that the metadata shows that it was taken within the last two hours by the kid\u2019s cell phone.\u00a0 So this is all adding up.<\/p>\n

Was there probable cause here?<\/h2>\n

Now let’s pause the story.\u00a0 The Number One question is: Do you think probable cause<\/a> is established?<\/strong>\u00a0 Absolutely!\u00a0 Probable cause is a fair probability that a crime has been or is about to be committed.\u00a0 And that is based on facts and circumstances that will lead a reasonable and prudent officer to believe those facts.<\/p>\n

What do we have here?\u00a0 Mom and Dad are divorced.\u00a0 Certainly there might be some bias by Mom against the Dad but Mom is not just doling out claims.\u00a0 She has proof.\u00a0 Also, she’s bringing in the kids with their own testimony and so forth.\u00a0 And why would the minor be lying about the data?<\/p>\n

In other words, the cops are allowed to presume that these witnesses are being truthful unless there’s something conflicting and there’s something else going on.\u00a0 They have the picture, and the metadata matches.\u00a0 This is; so far so good. I definitely believe that there’s probably cause here.<\/p>\n

The next question: Do you agree that the detain and freeze to detain the home and the suspect to prevent destruction of evidence was lawful?<\/strong><\/p>\n

Yes, I do.\u00a0 Absolutely.<\/p>\n

Can police freeze a home while they get a warrant?<\/h2>\n

Now, let’s talk about a couple of other things.\u00a0 When the police are lawfully inside the home, and they have probable cause that there is destructable evidence inside the home and they are going to seek a search warrant, they are allowed to freeze it because of the destructibility of the evidence.<\/p>\n

That case is Illinois versus MacArthur, US Supreme Court.\u00a0 That\u2019s not the exact same facts as here, but the police were lawfully inside a home for a civil standby.\u00a0 The wife ratted out her husband for having narcotics.\u00a0 They locked it down to get the warrant.\u00a0 MacArthur was saying, \u201cNo, you can’t stay in my home.\u201d\u00a0 The Supreme Court says, That\u2019s not how this works. It was reasonable to lock down the home.\u201d<\/p>\n

Is it an unlawful ruse to ask to come in out of the cold?<\/h2>\n

I guess there was also some concern that the police used a ruse to get into the home.\u00a0 In my opinion, based on these facts, they did not use an unlawful ruse.\u00a0 An unlawful ruse to get into a home is where you tell somebody something that they would be compelled to say yes to.<\/p>\n

So here are some examples.\u00a0 You go to a house and you want to look inside.\u00a0 You want to see if there\u2019s some plain view evidence and you tell them, \u201cHey, we have a report that there’s a gas leak here and we\u2019ve got to check out your apartment.\u201d\u00a0 That’s an unlawful ruse, right?\u00a0 People are going to feel compelled to let the police in to check out the gas leak.<\/p>\n

Another one was, \u201cHey, we have reports that there’s a bomb somewhere in the building.\u201d\u00a0 And the cops got consent to enter the home.\u00a0 They saw plain view evidence.\u00a0 Clearly, that’s that’s not going to work because you’re creating exigency.<\/p>\n

But the cops did not create any kind of coercion here.\u00a0 They simply asked him, \u201cHey, you’re in boxer shorts. Do you want to go inside your house and talk?\u201d<\/p>\n

At that point he could have said, \u201cNo, I’m good.\u201d or\u00a0 \u201cWait out here. Let me go grab some clothes. And I’ll come back.\u201d\u00a0 He could have said that.\u00a0 So the police trying to consensually get into his home by kind of trying to convince him that it’s cold outside is not improper.\u00a0 There’s nothing, absolutely nothing, improper about that.<\/p>\n

Cops can say stuff like that, even if their intent is to stay inside the home, as long as they did not coerce him.\u00a0 Based on these facts, there was no coercion.\u00a0 Detectives then chose to mirandize and interview the handcuffed suspect who had been detained for about an hour.\u00a0 That’s fine.\u00a0 You mirandize him when he’s in arrest-like custody.\u00a0 The detectives tried to convince him to consent to search the home, but the defendant says, \u201cNo.\u201d Okay.\u00a0 Are we good?<\/p>\n

How long can you hold someone while the warrant is being written?<\/h2>\n

We’re going to pause here.\u00a0 Are we good?\u00a0 Yes.\u00a0 The detectives can mirandize him.\u00a0 But there is one problem that I see.\u00a0 This guy has been detained for an hour.\u00a0 Where is the warrant?\u00a0 Who’s getting the warrant here?\u00a0 When you’re inside a home, and you freeze it to go get a warrant, what does that mean you have to go and do?\u00a0 Somebody had better be working on that warrant, right?<\/p>\n

Because if we have this dude detained on his couch, and we have made no diligent effort to go secure that warrant, we have a problem.\u00a0 His rights are implicated here.\u00a0 We are in his home, we froze his home.\u00a0 So that’s a concern for me.\u00a0 So I would like to know more about that.\u00a0 I’m not saying that we’re going to get things tossed.\u00a0 But that is a problem.<\/p>\n

Was there any warrantless exception available here?<\/h2>\n

The last thing I want to talk about is that they were going to seek the search warrant instead of using a warrantless exception.\u00a0 But I have tell you, based on what I see here, that there is no warrantless exception.\u00a0 There is no consent.\u00a0 There is no exigency that I can see.\u00a0 The evidence was not about to be destroyed or removed.\u00a0 So I don’t see how we’re even going to get the evidence without a search warrant in this case.\u00a0 So I just want to make that point.<\/p>\n

That\u2019s my opinion, and we\u2019ll leave it there.<\/p>\n

If you have more questions, more feedback, if you know something about this case that I missed and you think it changes the answer, let me know. This is the type of stuff that really helps cops get it right every time, talking about these issues and walking through them, step by step.<\/p>\n

Thank you for your support.\u00a0 Hopefully I’ll see you inside one of the live classes or online.\u00a0 Until next time, my friends stay safe.<\/p>\n

Related from Blue to Gold<\/h2>\n