Court: Possibility a dog might eat pot evidence doesn't OK warrantless search

A variation of an old excuse 'the dog ate my homework' was used by a cop -- the dog might eat the marijuana -- to enter a house without a warrant. The Ohio Court of Appeals said no that's a Fourth Amendment violation.

Perhaps nowadays students might attempt to say their emailed homework disappeared into a Internet black hole, but long ago, kids in school may have attempted to use the excuse 'the dog ate my homework.' In a bizarre Fourth Amendment case, a police officer used a variation of that old excuse — the dog might eat the marijuana — so the cop had to enter the house without a warrant. That case went before Ohio's Tenth District Court of Appeals. Much like the article Do you have a reasonable expectation of privacy in an ice fishing shanty, this case is not very techy but it certainly deals with the our Fourth Amendment rights and our civil liberties.

If law enforcement sees contraband in "plain view during a lawful observation," then it can be seized without a warrant, according to the plain view doctrine. The TSA frequently uses this doctrine "while screening persons and property at U.S. airports." But a cop has to have the right to be there before claiming "plain-view" and the "Invasion of the sanctity of the home is the chief evil against which the Fourth Amendment's warrant requirement is directed." The defendant's attorneys also argued [PDF], "The government must overcome the presumption that warrantless searches of homes are per se unreasonable by demonstrating that the search falls within one of the few, well-recognized exceptions to the warrant requirement." Fourth Amendment blogged "the possibility the dog might eat marijuana was not an exigent circumstance."

While driving in his car near his apartment complex, the defendant was stopped by Officer Leighty for "failure to have an illuminated license plate." But after the cop saw a pound of pot in plain view between the driver's feet, he arrested the defendant. The defendant had his dog with him and asked the officer if he could put his dog in the house before being taken to the police station. Officer Leighty followed the defendant to the door, where the defendant attempted to shut the door, but the cop used his foot to keep the door open. It was then that the cop saw a small quantity of pot and a grinder in the living room, and conducted a warrantless search before seizing even more evidence. It was decided at the trial court that even if consent to search was "tainted and invalid," the evidence seized in the warrantless search would have been admissible. The defendant consented to a search, but was that consent "valid" based on the "taint of the two recent Fourth Amendment violations?" As Fourth Amendment blogged, Ohio Court of Appeals ruled on March 1, 2012, "the possibility the dog might eat marijuana was not an exigent circumstance" and the trial court had erred in overruling the defendant's motion to suppress evidence.

From the Ohio Tenth District Court of Appeals: State v. Alihassan [PDF], the court ruled:

We disagree with the state's contentions. There was no evidence presented that the marijuana and grinder were in danger of destruction or removal. Although Leighty testified he knew there had been prior disturbance calls to the apartment regarding appellant and his girlfriend, he never said that he believed appellant's girlfriend lived at the apartment, and he admitted that people can have domestic disturbances when they do not live together. Leighty also admitted he heard no voices coming from inside the apartment, the television was not on, and there were no indications that a person was in the apartment. Although Leighty first testified that he heard no noises coming from inside the apartment, he later said he heard "noises" inside, and the noises were from an aquarium. Importantly, Leighty never testified that he believed the noises were made by people inside the apartment.

With no evidence of any third parties present in the apartment, there was no risk of destruction of the evidence. Although, conceivably, the dog could have ingested the small amount of marijuana on the table, the grinder would not have been easily destroyed.

The cop searched and seized without a warrant and the trial court "concluded that, even assuming that the consent was tainted and invalid, the evidence seized by the police would have been admissible under the inevitable discovery doctrine." Yet the Court of Appeals said, "Given our finding that the initial entry was a violation of the Fourth Amendment, and the trial court's additional finding that the subsequent protective sweep was a violation of the Fourth Amendment, the circumstances as to the voluntariness of the consent must be viewed from the perspective that the consent was

obtained on the heels of two prior Fourth Amendment violations."

In fact, the Ohio Court of Appeals wrote:

If we were to apply the inevitable discovery doctrine to the present circumstances, the Fourth Amendment would be rendered impotent in all similar cases in which a court later determines that the police, in fact, had probable cause to perform the warrantless search. It would also encourage police to engage in their own Fourth Amendment speculation without a prior probable cause determination by a court and foster a "search-first" mentality that disregards constitutional safeguards. In essence, the foundation of the Fourth Amendment would be completely undercut by applying the inevitable discovery doctrine to every case where there is a post-warrantless search determination of probable cause.

The trial court previously found the defendant guilty of all charges and sentenced him "to two years of imprisonment on the second-degree felony aggravated possession of drugs charge; four years of imprisonment on the third-degree felony aggravated possession of drugs charge; and six months of incarceration as to the possession of marijuana charge, with all to be served concurrent to each other." On appeal, the judgment was reversed and cause was remanded.

I'm clearly not a lawyer but the reason why this Fourth Amendment case caught my attention is because the drones are coming to police stations near you . . . and what if a spying drone under police control peeps inside your home and sees something incriminating in "plain view"? Will that trample your Fourth Amendment right against unreasonable searches and seizures and send law enforcement running for a warrantless search? The judge who voiced dissent in this appeal court decision wrote, "For consent to be tainted as 'fruit of the poisonous tree,' it must result from an 'exploitation' of the prior illegality." Let's say the police do obtain a warrant before search and seizure. Will law enforcement admit getting a warrant based on evidence gathered by drones? Wouldn't that be an exploitation of a prior illegality? Will the use of high-tech domestic drones to spy on We the People end up forever changing what is a reasonable expectation of privacy?

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