Common sense should rule in searches

In the middle of a January night, two sheriff’s deputies were summoned to an apartment complex in Mulberry, Fla. A 4-year-old girl had been seen wandering there, naked and alone. When deputies arrived at about 3 a.m., they found the girl in the company of local residents. She was disoriented and ‘had no idea where she had wandered out of.’ The deputies decided to search the complex by door for her caretakers. As one later testified, they were ‘concerned about the welfare of the parents (and) obviously we’re also concerned about any child abandonment or anything like that.’”

The above is quoted from a decision by the Florida State Supreme Court ruling in Riggs v. Florida (No. SC05-133) dated Dec. 15, 2005. The decision continues to explain that the child lived in a three-story, 50-unit apartment complex. A canvass of the building revealed that every door in the complex except one was closed. The one that was not closed was slightly ajar. Officers could not see anyone through the door’s opening. Reasoning that the child could have come from that unit, officers knocked on the door at least three dozen times. No one came to the door or answered their calls.

Searching through the apartment for the child’s caretaker under the assumption that something could have happened to that person, deputies found the following in plain view: A plastic cigar tube containing marijuana seeds, seven marijuana plants and both the child’s father and babysitter.

In court, the father sought suppression of the drug evidence under the argument that the search was not exigent. The state claimed warrantless entry was justified by the circumstances. The court agreed with the state. Deputies had the right to search the apartment to find the caregiver.

Judge Mark McGinnis presented several other details of the Florida case while speaking at a recent conference held by Fox Valley Technical College in Appleton, Wis. Frequent readers of this column will know that I am a big proponent of the school’s annual Responding to Missing and Unidentified Conference. This year’s speakers were all excellent, but I think McGinnis’ session is always my favorite because of the amount of useful take-away officers reap from his teachings.

The judge’s basic premise is that no court is going to condemn an officer for a good faith effort to save a life. He gives the following example: What if a child was missing and you asked the parents if you could search their home while looking for the child and they refused. What would you do? Some officers said they would call a supervisor or obtain a search warrant. McGinnis says that’s the wrong answer: You search the place, with or without permission.

Police are afraid of being sued. As a group, we have it embedded in our brains that we have to be ultra-careful not to commit actions that might jeopardize our cases in court. While that’s generally true, common sense says that if you’re racing time for a child’s life, then so what if, in your haste, evidence is tossed because you go ahead and search? Which is more important, he asks, preserving evidence or saving a child’s life?

We all know the right answer to that question. I don’t know a single officer who wouldn’t prefer to save a child and lose a case, over winning the case and losing the child. Another tip from McGinnis (I’ve used this technique myself), if you’re dealing with someone still on probation or parole, have the probation/parole officer do the search while you protect the officer.

McGinnis’ message: Nothing trumps the preservation of life. He gets no argument from me.

A 12-year veteran of police work, Carole Moore has served in patrol, forensics, crime prevention and criminal investigations, and has extensive training in many law enforcement disciplines. She welcomes comments at carolemoore_biz@yahoo.com.
She is the author of “The Last Place You’d Look: True Stories of Missing Persons and the People Who Search for Them” (Rowman & Littlefield, Spring 2011)
Keep up with Moore online: www.carolemoore.com
Twitter: @whatcopsknow
Blog: www.whatcopsknow.tumblr.com
Amazon author page: www.amazon.com/-/e/B004APO40S

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