A Fool-Proof Way Around the Warrant Requirement?

[TheBluesMan]

http://law.blogs.enotes.com/?p=883

Glover v. Eight Unknown DEA Agents, 06-13061 (11th Cir., Feb. 23, 2007)

DEA agents have devised a foolproof way to raid meth labs, at least according to this § 1983 decision from the Eleventh Circuit. Here’s the story, straight from that Court’s unpublished opinion:

[T]he agents attempted to secure a search warrant for Glover’s residence on the suspicion that he was operating a clandestine methamphetamine lab there. The magistrate judge determined that the agents lacked sufficient evidence to merit a warrant. So the agents arranged to have a confidential source enter Glover’s house on the pretense of delivering a tank of anhydrous ammonia he had ordered.

. . .

The source was wired and agents were monitoring the situation, ready to raid the alleged lab if necessary. In their affidavits, the agents state that after entering Glover’s residence, the source started coughing and complaining of chemical fumes over the wire. Glover claims that he never heard any coughing but admits that the source went upstairs to use the bathroom. Fearing the source was being exposed to noxious chemicals, the agents entered Glover’s house and made the arrest.

Glover pleaded guilty to various drug charges and is presently serving his sentence, but he also filed a civil suit, claiming that the agents violated his constitutional rights during the raid. Among other things, Glover claimed that the warrantless entry into his home violated the Fourth Amendment. The district court granted summary judgment for the defendants, and the Eleventh Circuit affirms.

Regarding the Fourth Amendment search claim, the Court explains that the agents’ entry into the home was justified by the exigent circumstances doctrine, since they feared that their source’s life was in danger due to the noxious chemicals inside the house.

So let’s take a vote: cough if you think that the agents instructed their source to complain about the chemicals once he was inside the house. Hey, I heard a lot of coughing out there!

Anyway, if the agents were so worried about their source’s health, why did they knowingly send him into a meth lab? Although this scenario reeks of officer-created exigent circumstances, the Eleventh’s decision suggests that the DEA has hit upon a fool-proof way to skirt the warrant requirement for its meth investigations.

After reading the facts presented in the unpublished opinion, it looks like the court made the right decision. Nonetheless, it is clear that law enforcement officers now have a new loophole around the warrant process. They can create exigent circumstances that allows them to enter a home without a warrant.

What bothers me most is this:

The magistrate judge determined that the agents lacked sufficient evidence to merit a warrant.

I'd like to know why he disallowed the warrant. A strong chemical smell around the house and the occupant receiving shipments of anhydrous ammonia would seem like enough to justify a warrant to search for a meth lab. I can't help but wonder what evidence was presented to this magistrate judge initially.

- - - - - - -

How many of us have the following items in our home:

• black powder or pyrodex
• lead (in the shape of bullets)
• matches or lighters
• children

Keeping those items in mind, read this:

...the agents had probable cause to believe that the confidential source was in danger because of the possible existence of a volatile methamphetamine lab. Holloway, 290 F.3d at 1337 (concluding that “emergency situations involving endangerment to life fall squarely within the exigent circumstances exception”); Davis, 313 F.3d at 1302 (probable cause exists in emergencies where officers reasonably believe someone is in danger).

Is it a stretch to believe that the presence of the above listed items would constitute probable cause and therefore an exigent circumstance that would allow LEOs to enter your home and sieze whatever is in plain sight?

...or am I being paranoid?

-Dave

 

[TimRB]

"...or am I being paranoid?"

Paranoia is a long-standing legal tradition in this country. The courts have always (until recently, maybe) been cautious in cases involving interrogation, arrest, search and seizure, etc., thinking that such governmental powers could easily be abused by law enforcement personnel. It doesn't (didn't?) matter if the cops' intentions were good, or even if the defendant was ultimately proven guilty. (Or, as in this case, even *pleaded* guilty.)

Tim

 

[Double J]

searches

If you have FFL or FEL you've already concented to being checked by the Feds anytime they choose. They may conduct a search of the property, residence of the person licensed. Nothing new about that.

 

[Eghad]

Exigent circumstances has been a cause for entering without a warrant for a while. Looks to me like the agents were thinking outside the box. Have to see if anybody else rules on it.