Threat of warrant invalidates arrest

Ky. Supreme Court says search exceeded limits

Associated PressJune 22, 2012 

Lexington police told Crystal Lynn Guzman that, unless she agreed to allow a search of her apartment, an officer would remain with her while another got a warrant.

Guzman consented to a warrantless "protective sweep" search in the early hours of Sept. 10, 2008, which turned up cocaine and drug paraphernalia and resulted in Guzman's arrest.

But the Kentucky Supreme Court ruled Thursday that the threat of getting a search warrant amounted to an impermissible ruse by officers, who had no probable cause for a warrant. The ruling threw out Guzman's conviction as well as the evidence seized in the search.

The ruling sets new limits in Kentucky on how far police officers may go to gain access to homes and vehicles without a search warrant.

"Even when a search is authorized by consent, the scope of the search is limited by the terms of its authorization," five justices wrote in an unsigned opinion.

Justice Bill Cunningham wrote in a concurring opinion that using the threat of a search warrant without probable cause to get the document has become a dangerous and much-used technique that "could be an exploding land mine."

"When you have consent to enter into one's living room, you are not invited into the kitchen, or the bedroom, or the basement," Cunningham wrote. "Here, we are talking about the suppression of drugs. When the issue appears squarely before us in full bloom, it could mean the suppression of a murder weapon. Hopefully, this writing will help us avoid that more critical situation."

When making an arrest, police have the right to search and control the immediate area around where the incident happened for their own safety. But when making an arrest in a home, officers generally need some evidence of criminal wrongdoing in another part of the residence to continue searching. Without consent or an emergency circumstance, officers have to stop the search unless a warrant is granted.

In this case, officers went to Guzman's apartment after a neighbor complained about possible drug transactions. Officers found Guzman and a man on the floor having sex when they arrived. Once Guzman turned on a lamp, officers asked if anyone else was in the apartment, to which Guzman responded no. Officers saw a blanket covering a doorway and conducted a "protective sweep" of the apartment.

During the sweep, an officer found a spoon in the kitchen sink that had drug residue on it. That's when an officer asked for permission to search the entire apartment. Guzman refused, and officers threatened to get a warrant do to so.

The justices noted that there was no evidence of criminal wrongdoing seen in the living room, and officers were told that no one else was in the apartment. Without consent, officers should not have conducted the sweep or been in the kitchen, the justices wrote.

The justices noted that the "ancient" Fourth Amendment to the Constitution, as well as Section 10 of the Kentucky Constitution, protect citizens from warrantless search and seizures and "do not discern between rich or poor."

"This apartment, its occupants, and their unseemly activities may not have measured up to an acceptable standard of decency," the justices wrote, but that didn't give officers the right to search the home.

Cunningham noted that the method used by police "is fraught with constitutional problems."

"Misinformation or deception by a law enforcement officer for purposes of obtaining consent to search will not be upheld," Cunningham wrote.

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