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  1. beentheredonethatagain
    ASHEVILLEA city woman faces five drug-related charges, including cocaine possession with intent to sell and deliver and maintaining a dwelling for controlled substances after police officers on foot patrol noticed the smell of marijuana emanating from her home.

    -handcuffs-on-woman.JPG
    Alexis Takashi Durham, 20, of Atkinson Street, was also charged Friday with possession of drug paraphernalia, simple possession of a controlled substance and possession of less than a half ounce of marijuana, although she wasn’t at home when city police noticed the smell of marijuana.
    Officers were on foot patrol when one of them made eye contact with a female subject who closed the door to the apartment, according to the search warrant application.

    Three officers approached the apartment to conduct a “knock and talk” when they noted the odor of marijuana, according to police. Then officers noted a strong odor of marijuana at the door and through an open window.
    When Brooks knocked on the door, a man exited the rear of the apartment, but was detained by one of the officers who went to the back of the apartment before the knock, according to the search warrant application.

    Officers saw digital scales on the kitchen counter through the back door. After further investigation, officers learned the people in the apartment were not on the lease and the lessee – Durham – was not on the premises.
    The woman initially spotted inside the apartment was not identified in the search warrant application. The man was identified as Lewis Rodney Lytle Jr. He was arrested on outstanding warrants, including second-degree trespass and possession of less than a half-ounce of marijuana.

    Police seized baggies containing marijuana and two large white rocks, $134.45, digital scales, a marijuana cigarette, two dosage units of hydrocodone and several small baggies, according to police.
    Bond for Durham was set at $1,000.

    http://search.yahoo.com/r/_ylt=A0oG...675/**http://www.citizen-times.com/article/20

Comments

  1. beentheredonethatagain
    do the cops not care about our Fourth Amendment rights protecting us from illegal searches and seizures? they looked thru the back door to search with their eyes to gain evidence to apply for a warrant.
  2. Docta
    I'm not an America, my understanding of the 4th Amd to the bill of rights was protection against unreasonable searches and seizures and the limiting of the search to that sited in the warrant, it says nothing about "illegal searches and seizures".
    As long as a sworn officer has affirmed under oath to seeing or smelling the pot in front of a judge, how could there be a problem with the warrant?

    The search seems a straight up smelt the pot sore the shit got the warrant booked a dealer, case closed.


    Fourth Amendment
  3. beentheredonethatagain
    okay does smelling the odor of marijuana from the street constitute "probable cause" ? no it does not.

    does the police officer going behind the residence and looking thru a window or back door constitute a "search"? yes it does thereby making it "illegal"

    the Fourth Amendment protects us against "illegal searches and seizures" any evidence they obtain from the unlawful act is considered to be obtained "under duress" and is inadminsable
  4. MisMonroe
    From what I have been told, all they needed was to see those scales to be granted a search warrant. Probable cause and they're on their way to slamming you with whatever you can be gotten for.
    Here's an excerpt from a law firm's website:
    Searches of Homes and Seizure of Property
    In general, the police can only enter your home under three conditions: 1.) if you invite them in; 2.) if they see something in your house from the sidewalk or front porch that gives them probable cause to enter; and 3.) if they have a valid search warrant signed by a judge. If you invite the police into your home and they see or hear something they believe indicates criminal activity, they have probable cause to investigate further. If you don't invite them in they cannot enter your home and conduct a search. If they peer over or around you and see something like a gun, bong, or someone nursing a fresh wound, they may enter to investigate further.

    She also lived in an apartment, so they could have easily been given permission from owner/manager.

    Also like to add this excerpt from an article (http://le.alcoda.org/publications/point_of_view/files/police_trespassing.pdf) on what is legal when it comes to multi-occupant buildings:

    Multiple-occupant buildings
    In multiple-occupant buildings, such as apartments and hotels, the occupants do not
    have a reasonable expectation of privacy in areas that are for the use of the tenants in
    general such as hallways, walkways, recreation facilities, parking lots, and enclosed
    garages.30
    Consequently, an officer’s act of entering such a common area is not a
    “search.” As the court noted in People v. Seals:
    [P]olice officers in performance of their duty may, without doing violence to the
    Constitution, enter upon the common hallway of an apartment building without
    warrant or express permission to do so.31
    Note that an entry into such a common area is not a search even if officers entered
    through a locked door.

    I added this because in apartments, I'm going to assume this was a first story one since they had a back door, the yards are generally always open, anyone can walk through them, they are not designated to any certain person.

    ALSO!!
    For anyone ever in the situation where an officer is at your door with a warrant, did you know that you can state that you do not consent to the search (hopefully with witnesses around), and officers will be required to strictly search only what is stated on the search warrant?
    Here's an incredibly helpful site: http://www.thelaw.com/guide/criminal-law/search-warrants-probable-cause-your-home/
  5. beentheredonethatagain
    okay does smelling the odor of marijuana from the street constitute "probable cause" ? no it does not.

    does the police officer going behind the residence and looking thru a window or back door constitute a "search"? yes it does thereby making it "illegal"

    the Fourth Amendment protects us against "illegal searches and seizures" any evidence they obtain from the unlawful act is considered to be obtained "under duress" and is inadminsable in court.

    The right of citizens to be protected in their homes against intrusions by police is at the heart of what the US is founded on. 1776 was the year the founding fathers sign our Constitution declaring the right to life , liberty and the pursuit of happiness. our homes are our castle and is not easily entered without permision, or probable cause, or a search warrant.
  6. Docta

    My understanding is that marijuana is a controlled substance in the U.S. so it's smell would give police a reason to investigate further, there was no trespass and the drug paraphernalia was in plane view/ line of sight through an open door. Drug paraphernalia, scales etc would be probable cause to warrant a court ordered search.

    I've already posted the 4th amendment in a quote, it says nothing about "illegal searches and seizures".

    Illegal searches and seizure is part of the rules of evidence, "lawfully search and seize evidence while investigating criminal activity" covered under the current US Supreme Court president 527 U.S. 465 (1999) MARYLAND v. DYSON

    It overturns the ruling that a search is not unreasonable if based on facts that would justify issuing a warrant, even though a warrant has not been actually obtained. E. g., United States v. Ross, 456 U. S. 798, 809.

    http://supreme.justia.com/cases/federal/us/527/465/case.html
  7. beentheredonethatagain
    with that all being said, the officer stated that we went to the back of the residence and look thru a door or window, thats a search according to the law.. if the cop knocked on the front door and saw some drugs when the door was opened then because the front porch is a common area, in plain view of anyone passing by, it would be cause for getting a warrant issued, but he was in a private back yard area conducting what amounts to a search by peering thru doors or window. which is illegal ...
  8. MisMonroe
    "When Brooks knocked on the door, a man exited the rear of the apartment, but was detained by one of the officers who went to the back of the apartment before the knock, according to the search warrant application.

    Officers saw digital scales on the kitchen counter through the back door."

    Just wanted to point this little bit out. The man exited the back door as soon as the officers knocked on the front door THEN it says that the scales were seen through the back door. Due to the placing of this information in the timeline of events, it would lead me to believe that the door was open when the scales were seen.

    Either way, scales should have not been left out, period. The occupiers really fucked the lessee over. The officers would not have had enough evidence or probable cause to obtain a search warrant on smoke, the scales are what did it, and I'd be blaming the asshole who left them out in the first place.
  9. Docta
    Private back yard? what thread are you reading. I see the word apartment, no description of the environment but if there is one apartment there may be more so it would be common ground.
  10. Potter
    having found dealers through smelling it off the street, yes, I think smelling pot is probable cause for there being illegal pot smoking going on.
  11. Rightnow289
    Of course smelling pot is probable cause. It's how most people get caught who grow Ganja.
  12. TheBigBadWolf
    ...And wolves who are dumb enough to smoke out in the street,- what led the wolf to be searched. Nothing on him, so,- just a wasted hour, sky high on the police departement, nothing else...

    (Notice: this happened in Germany, no idea what American Law says in such a case)

    To learn: don't do smelly stuff if you want to go unrecognized by nosey people.

    TBBW
  13. VagabondWraith
    They had "reasonable suspicion" to approach the house and do a knock and talk as they call it and have a legal right in doing so. Then they were in the position to smell the pot coming directly from the dwelling, which provided probable cause. It's a game of connecting the dots on how they move up the food chain to actually get legal justification and permission for a full on search and seizure, and then arrest warrant/s. Crappy, but it's a double edged sword, and the price we pay so they can do their job well across the board in other areas where we might actually need help; drug arrests just happen to be an unfortunate part of the package.
  14. MisMonroe
    I believe, unless I read the story wrong, the reason they approached the house in the first place was because of the smell of pot, that and the woman acting suspicious when she shut the door upon seeing the officers. The smell alone was not going to get them a search warrant, it was seeing the scales on the counter that did it, they have to have more than just suspicion in order to obtain one.
  15. VagabondWraith
    Yes, the smell and the eye contact (suspicious behavior) is what brought them to the house under the guise of "reasonable suspicion". Once at the house however, they could smell the odor coming *from* the house, and yes, also saw paraphernalia, thereby linking it to now present probable cause for a search warrant. This is how they often bust people in their own homes in many jurisdictions, as well as vehicles they pull over. The original reason to approach the house was "reasonable suspicion", which is a loose and flexible term, benefitting law enforcement and giving them a foot in the door so to speak, and then they can establish probable cause pretty easily once that happens and they can say "ok, it IS coming from this dwelling and we see paraphernalia". In some cases, the smell eminating from the structure is PC enough, without any paraphernalia. BAM! Search warrant- and you're fucked; that is if they don't immediately enter by invoking exigent circumstances if they deem there's immediate danger to those inside, a violent act in progress inside, destruction of evidence, or some such thing. :)
  16. makin
    Cops are nothing but lying cheating drug planting kids that got picked on when young. I'll say no thanks to the double edged sword and just accept my gun rights back and protect myself.

    The fourth may not protect against an illegal search but the second guarantees my right to bear arms " the right of the people to keep and bear arms shall not be infringed."
  17. VagabondWraith
    While I support the 2nd amendment 100%, and am well armed, and if I had to choose between the two, I'd choose that over having professional L.E., many people are very unaware and/or unaccepting of the actual large numbers of human garbage that we are spared from having to deal with (and loved ones fall victim to) because of law enforcement and their constant work, however dubious and shady and downright corrupt it sometimes turns into. While there are many bad ones, there are many good ones too, just like any *group* (including drug users) and I don't mean that in a subjective way. We are able to continue our lives relatively unabated and hassle free (an understatement) from many serious troubles because of the presence of a group who's job it is to root out and deal with the trash and keep it in check. Many cops are sympathetic to the cause this site tries to protect, as they *do* have practical brains in their heads and see it makes *their* job easier too, while still focusing on the real issues that if they didn't deal with, would probably prevent many of us from being here in the first place.
  18. beentheredonethatagain
    EDIT . I have been in this same situation, the cops do a knock and talk, I open the door and step outside and close the door behind me, they ask if I have marijuana growing inside, I said If I did it would be a legal grow due to my status as a medical patient with a doctors recommendation. They ask if they can look inside, I say not without a search warrant. They tell me that I have two outstanding warrants for traffic, I get handcuffed, they do a protective sweep, and find Nik's garden. Nik get two more charges stemming from that.

    the police report states that prior to the talk and knock they walked around to the back of my apartment , which has its own private yard, and peered through a partially open window curtain.

    When the time for pleminary hearing the cops didnt tell the judge the part about looking at the plants from the back yard window, because the judge in his ruling stated point blank that what is visable from the front is common area and would not be a unlawful search , but if the cops looked into the apt from a back or side door or window, then that would be a illegal search, hence the judge ruled that NIK was to stand to answer the charges, the public defender didnt even say a word in my defense, the police report was never brought up. I was being represented by incompeted hack , in the back pocket of the state. Needless to say I tried to fire him, but after a Marsden hearing, I was not allowed to change to a different P.D. so that left me to either continue to hell with him or go propria persona, pro-per. pro-se, or just plain ole " self represented" I choose the latter.
  19. Grimace
    I'm not sure about other states, but the supreme court of Massachusetts ruled that the burning odor of marijuana does not constitute probable cause to believe a criminal offense is being committed (Massachusetts reduced possession of an ounce or less of marijuana from a criminal to civil offense in 2008). This allowed the defendant to motion successfully for suppression of evidence obtained in the search (crack cocaine as well as a confession). http://www.thenewspaper.com/rlc/docs/2011/ma-reefer.asp
  20. VagabondWraith
    It's nice to get a state by state rundown on legal differences such as this. It helps with future travel plans ;) NORML (www.NORML.org) provides a wonderful compendium on state by state laws on marijuana, penalties, medical issues regarding it, etc. Even though it doesn't necessarily cover the legal powers of L.E. in every case in respect to enforcement of marijuana laws, knowing the cannabis laws themselves helps somewhat at least on that front.
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