Posted on 07/11/2005 10:59:31 AM PDT by Excuse_My_Bellicosity
Most visitors just knock on the door. But when a detective approached Troy Levi Miller's home one day last year, he made no attempt to contact anyone inside.
Instead, he wiped a sterile cloth over the doorknob and left.
A test on the cloth allegedly revealed traces of methamphetamine, and those results helped a narcotics task force get a warrant to search the South Salt Lake house. But now, U.S. District Judge Dale Kimball has thrown out the test as a violation of the Fourth Amendment prohibition against unreasonable search and seizure.
Kimball's ruling was the third one from a federal court in Utah - and only the fourth in the nation - involving the Ionscan 400B, a machine that analyzes microscopic particles picked up by wiping a surface with a sterile cloth. The cloth is placed in the machine, which gives an alert when certain substances, such as cocaine and methamphetamine, are found.
A doorknob is part of the private area of a residence and the officer should have gotten the search warrant before taking the swab, Kimball said.
"A visitor could not turn the doorknob without invading the privacy of the home's occupants - the only purpose for turning the doorknob is to gain access to the privacy of the home," the judge wrote in a June 30 decision. "A doorknob is not something that is transitory that could be borrowed, taken, or moved to another location. . . . It is a component part of the home."
However, Miller isn't off the hook. Kimball also decided there was enough other evidence, without the test results, to provide probable cause for a search warrant.
That leaves in place felony charges of possession of a controlled substance and aiding in the manufacture and sale of methamphetamine against the 34-year-old Miller.
Police argue that the presence of controlled substances shows that individuals who use or sell narcotics touched the tested area and is evidence of drug dealing in the residence.
The dispute over the technology centers on whether a doorknob is part of a home, a factor that helps determine whether police must get a search warrant before getting a swab. In addition, defense attorneys note that anyone can touch a doorknob, and argue that the mere presence of drug particles is no evidence of a crime.
The three Utah rulings and a 1999 decision out of the Virgin Islands have split on the issue.
In the Virgin Islands case, a trial judge threw out the analysis of a swab taken from a home's screen door, saying the search for marijuana residue violated the Fourth Amendment.
In Utah, U.S. District Judge Ted Stewart took a similar stand, ruling in August that the Ionscan test of an Ogden man's doorknob required a warrant. However, he upheld a search of Anthony Diviase Mora's home, saying other evidence provided probable cause.
Just a few months before, his colleague, Judge Tena Campbell, refused to throw out evidence against Dennis Daybell of Magna obtained through an Ionscan test.
She said the procedure reveals nothing about the inside of a house and compared use of the machine to having a trained dog sniff for drugs.
pmanson@sltrib.com
Wonderful. So now I'm intimately responsible 100% of the time for anybody who shows up on my doorstep. If my scumbag brother-in-law comes over looking to borrow money, I stand to get my door kicked in, have my face shoved in my carpet with a knee on the back of my neck, and my house torn apart by the cops because I won't (can't) tell them "where the dope is". This isn't happening in Nazi Germany or the former USSR, it's happening right here. Very nice.
A crappy decision like the eminent domain one. What's next? Thoughtcrime?
Chill out, dude... the court ruled against the police!
That's a crappy ruling?
I understand, I just got riled that this practice was ever justified and used. And the cops see nothing wrong with it.
More BS lies from cops. They tried this crap in FL. They figured they could test money for "traces" of cocaine in the 80's, and arrest those whose money had traces on it. Guess what, virtually ALL of the money in some places like Miami have coke traces on it. You'd never be able to track it to anybody. I am sick of cops being so unpatriotic and thinking they are better than everyone else.
The conviction should be thrown out. American currency will routinely show traces of drugs. Money passes through many hands...
Ok, that's one way to look at it.
Of course, why would the police be testing your doorknob, out of the hundreds of millions of doorknobs? They would have to have some reason to think that testing your doorknob would reveal something interesting.
The 4th amendment protected us from having people break into our houses and trash them looking for evidence they could use against us. Having a person walk up to my door just doesn't seem like much of a violation.
By this reasoning, a police officer shouldn't be allowed to ring my doorbell, since the doorbell is part of my house. Ringing the doorbell might cause me to come to the door, and my presence might provide clues, or I might be persuaded to let him in to look around -- so ringing without warrant to ring should be illegal.
I wonder who owns the outside door knobs in a condominium?
The 4th amendment was not intended to protect criminals from being caught. This is not a game. It was intended to minimize the inconvenience to citizens from law enforcement activities.
And I note that having found drugs on the door knob is not itself probably cause to invade your house. The information has to be taken to a judge, who can make the same judgment about the meaning of the evidence as he does already with other evidence. Surely judges realise that people touch door knobs, and would want some other information as to why it is rational that the drugs found are related to the house.
The poster has a bigger problem. If you really have a low-life druggie who comes to your house, if he sits in your living room for too long the police state can seize your house, without a trial, on the excuse that you harbored a drug addict. You would have to then go to court to prove that you had no idea he was a druggie. You probably won't win.
All that being said, it would seem prudent to get a judge to sign a warrant to do a swab test, rather than wait for the test to go to court.....
Unfortunately, the money involved when the cops can seize tens of thousands of dollars worth of private property (without ever charging anyone with a crime), sell that property and then use the proceeds to fund and even BIGGER anti-drug task force causes many cops to forget something as small as the Constitution. Besides there are innumerable cops who will do anything that their boss tells them as long as they think a judge will go along with it.
so will this work on a vehicle? if so *I* say we should see how many cops are "dealing drugs" out of their patrol cars.
You forgot your sarcasm tag.
Of course, why would the police be testing your doorknob, out of the hundreds of millions of doorknobs? They would have to have some reason to think that testing your doorknob would reveal something interesting.The informant who just touched the door perhaps. This standard makes it way too easy to set someone up for a search.
-Eric
For instance, if the police are looking for an arsonist, and find traces of accelerants outside a house, that doesn't prove any crime, but it does show reasonable grounds to search for evidence of a crime. All four court decisions referenced in this article agreed on this point. They disagreed only on whether the outside door knob was "public" or "private" for purposes of a warrantless search.
Congressman Billybob
I bought my car used (lo miles, great condition) from a rental car agency. What if some low life had smoked pot or used drugs or tranpsorted explosives, etc. in it and left traces and I got stopped by the police? What if they used one of those drug dogs? (and yes, I've had it cleaned and vacuumed, but still,..)
You could be in big trouble and expense because of someone elses behavior or actions. Same thing with your doorknobs and the outside of your house. How would you know if someone planted drugs etc. around the perimeter of your house or garage?
Suppose some doped-up burglar tries your door, finds it locked, and leaves behind traces of drugs on the knob? You report an attempted burglary, the cops test the knob, and you get arrested? This lowers my respect for the cops a little more, and it was pretty low to start with.
Amen I aam glad this was thrown out.
Well at least they didn't shoot a baby to protect themselves.
What's next? Thoughtcrime?
Actually, it was the police action with the doorknob that was crappy. I should have had more coffee this morning..
I wonder what the charges would be if an assailant shouted "I love you" while trying to axe someone.
I believe that a few years ago a court ruled that recorded sounds from inside a home that were obtained from a device that analysed vibrations on a window were legally admissable.
It's not like I have homeless crackheads crashing at my house and I don't run with those kinds of people. My point is that if the cops are allowed to swab doorknobs, then that makes me accountable for the behavior of anybody that comes to my doorstep for any reason. Do you want your front door kicked in because you got visited by an old college buddy or relative that has a fairly new crack habit that nobody knows about yet?
I'm hearing stories of cops raiding houses that have unusually high electric bills on suspicion of growing pot. If you're a home do-it-yourself welder, watch out.
" If my scumbag brother-in-law comes over looking to borrow money"
This is no joke. I came home one day to find one of my cousin's sons, who's spent a lot of time in jail and prison (mostly for being drunk, drugged and stupid) in the house talking on my phone, online on my computer (and had changed some of my settings and software) had helped himself to a $30 bottle of wine that was a gift to me, had rifled through my mom's medicine cabinet and taken all the meds left over from her nursing home and had just made himself at home. The house was locked when I left. He just removed a screen, opened a window and invited himself in. It meant nothing to him. I escorted him out the door to his truck (which he never finished paying for of course, sticking his father in law for the bill).
He was exhausting to be around. He never shut up, never stopped trying to manipulate or make you feel guilty for his self-induced "mistakes" and misfortune. He would just wear you down. He never shut up! In the old days, I'm sure people like him got shot, just to shut them up.
I could tell you a lot more stories about him and one of his brothers. It's like that Albert King song, "Born Under A Bad Sign", if he "didn't have bad luck, he wouldn't have any luck at all".
I take a lot of short business trips, meaning I rent cars a lot. I always give it a good look under the seats, in the trunk, and all that. But you can't look everywhere. I hate to think that I could take the hit for some weirdo who rented the car before me. Rental car places aren't always the best at cleaning out their cars. There have been many many times that I've found rental agreements and other paperwork from previous customers in rental cars, so the glove box is something that should always be checked real well.
The doorknob was only a peice of the compelling information that convinced a judge to issue a search warrant. The perp was arrested after a properly executed search turned up illegal drugs.
I'm extremely convinced that if the cops were to serve a search warrant on my house, they would nothing (unless they planted it). I don't know about everybody else, but I'm very sure that I would find having my door kicked in, being pinned face-first on the carpet, and having my house gone through piece by piece decidedly inconvenient. The cops need to go find a different method of determining probably cause.
Probable cause...that's better!
The doorknob swab was only a piece of information required to get the search warrant. Although no knock warrants occur they are not routinely issued and if all a cop had was residue on your doorknob, he would be unable to get a warrant much less a no-knock warrant. But don't let the facts stop you. Exaggerate the issue and paint all law enforcement as jack-boot thugs. It makes a much better story.
For the record, I tend to agree with the judges decision and if I were in a position to make the ruling would likely not allow a doorknob swab as a tool to obtain a search warrant. But crazy as it sounds, I feel the facts should be debated, not wild fantasies and hyperbole.
Or, they could just walk down the street testing every doorknob, and get warrants on any house that comes up "hot". Bad procedure. Good ruling.
I think most cops are good and decent folks. There are a few though, that mess up the works for all the rest. There is nothing that scares me more than a corrupt police officer or a corrupt district attorney. My good friend got caught up in some of that stuff out in Seattle a few years ago, (someone left pot in his car) and I must say that the D.A. there was not a good person, nor were the police! What a bad joke that was....20 grand to defend himself and the judge threw it out the first minute of his trial.
The doorknob swap was not the sole basis of the warrant and it is extremly unlikely any judge would sign off on a warrant based on this little "evidence". The warrant was based on a number of facts, one of which was the swab on the doorknob. Although I agree with the judge's ruling, your senerio doesn't jibe with the facts of the case.
How's about someone who wants to harass you sneaks up on your house tonight and places traces of an "illegal" drug on your door knob, then calls in a tip.
Would you enjoy the intrusion? No? Then this practice is null and void on its face and even having a cop doing it should lose his badge, regardless of a judge ruling it inadmissible.
Maybe another judge wouldn't rule it inadmissible, and you finally get it dropped, after a few thousand dollars in legal challenges.
Enjoy the loss of money, would you? No? This exercise could devastate a family.
Umm. . .extremly should be extremely, senerio should be scenario, and jibe should be jive.
A critical element of this decision is the "sterile" cloth. If a practice like this had been allowed to stand, how long before pre-treated cloths start getting used? Don't think it can't happen, all it takes is one or two bad cops in a department.
I think that it does. If the judge had ruled that the swab was probable cause for a warrant, then that would be all that would be required for a warrant. Probable cause is probable cause. That would allow the cops to use exactly the scenario that I described to obtain search warrants. He ruled that it was not admissable, which disallows them from doing just that.
It was an important ruling, and I am glad that it went the way that it did. It would have been horrible had it gone the other way. It was fortunate that the cops had probable cause other than the swab. A search warrant doesn't require multiple instances of probable cause. One will do, but several 'probable causes' decrease the chances of dismissal.
Unless you're turning into the wind...
(sorry, couldn't resist)
Violent sex crime?
"The cops need to go find a different method of determining probably cause."
--- Its probably now simplier to just get an order to eminent domain your house now. Search it once they take possession. If done quietly, it could be easier than getting a search warrent. (Speculation -- planning commisioners are easier to buy off then judges)
Agreed, but if the officers do not have a probable cause that is strong enough for a warrant, a number of less than probable causes can indeed equal up to a probable cause. For example, if I am seen cavorting with nefarious characters, this may not be enough for a search warrant. If I recently purchase an expensive vehicle with no obvious new source of income, a warrant may still not be granted. If I have less than savory characters hanging out at my house all hours of the day, a warrant may still not be issued. But all these taken together may be enough for a judge to issue the warrant. (Please don't nitpick these examples, I am just trying to make a point not present solid legal precedence.)
As I read the article, this is what happen, especially since the judge even commented that their was sufficient grounds for a warrant from other probable causes.
But we are in agreement that this was a good ruling. A huge burden is place on law enforcement to ensure law-abiding citizens are not harassed or unduly inconvenienced. Unfortunately, the criminal element (aided by less than ethical lawyers) finds ways to use that burden to hide from justice.
" it is extremly unlikely any judge would sign off on a warrant based on this little "evidence". "
--- Up until a short while ago, I would have said that 5 judges would have never signed off on eminent domain refering to private enterprise.
You touch on another topic--police or law enforcement officers in the drug trade, either overtly or by bribery.
The ex-Sheriff of Cameron County Texas was just sentenced for being involved in the drug trade. Unfortunately, this is not unusual, at least in Texas.
I began collecting stories about LEOs in the drug trade some years ago in prep for a book that was never developed. It wasn't long before I had notes on guilty LEOs in all 254 counties in Texas. There was no interest in the project from editors because the facts were so commonplace as to not raise any eyebrows.
Rememember this commonplace saying: Narks always have the best dope. (implying they can take their pick from confiscated stashes)
ah.. then we get back to the point that the WoD is a waste of time and money.. especially if so many officers are using confiscations as product for off duty business.
Not quite the same thing, but I get your point.
Not quite the same thing, but I get your point.
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