PLANT IN THE WINDOW

• NCJ Number: 54405
• Journal: Law Enforcement Quarterly Volume: 7 Issue: 3 AND 4 Dated: (FALL-WINTER 1978) Pages: 14-18
• Author(s): D M EBERT
• Date Published: 1978
• Length: 5 pages
• Corporate Author: San Diego Cty Office of the District Attorney
• Sale Source: National Institute of Justice/
• Language: English
• Country: United States of America

Annotation

A COURSE OF ACTION IS SUGGESTED FOR THE POLICE OFFICER WHO SPOTS CONTRABAND (MARIHUANA) INSIDE A RESIDENCE.

Abstract

THE FIRST QUESTION THE OFFICER SHOULD ANSWER IS WHETHER THE PLANT WAS IN PLAIN VIEW. FOR THE PLANT TO BE IN PLAIN VIEW, THE OFFICER MUST OBSERVE IT FROM A PLACE HE HAS A RIGHT TO BE. THE NEXT STEP IS TO OBTAIN A SEARCH WARRANT. TWO DECISIONS OF THE UNITED STATES SUPREME COURT ARE CITED IN SUPPORT OF OBTAINING A SEARCH WARRANT. OBTAINING A SEARCH WARRANT PROVIDES THE OFFICER WITH SEVERAL ADVANTAGES IN ADDITION TO THE LAWFUL SEIZURE OF THE PLANT. THESE ADVANTAGES ARE AS FOLLOWS: (1) THE WARRANT ALLOWS A BROADER SEARCH; (2) THE OFFICER AVOIDS PROBLEMS INVOLVING THE UNLAWFUL OCCUPATION OF A RESIDENCE; (3) THE OFFICER MAY MAKE AN ARREST WITHOUT OBTAINING AN ARREST WARRANT; AND (4) THE INDIVIDUAL BEING SEARCHED MAY NOT WITHDRAW HIS CONSENT BECAUSE HIS CONSENT IS NOT NEEDED. WHEN OBTAINING THE SEARCH WARRANT, THE OFFICER SHOULD BE ABLE TO STATE SPECIFIC FACTS CONCERNING THE PLANT BEING CULTIVATED. IT IS SUGGESTED THAT IF THE OFFICER HAS PROBABLE CAUSE TO BELIEVE THAT A RESIDENCE CONTAINS CONTRABAND, BUT HAS NO SEARCH WARRANT, THE OFFICER SHOULD NOT ENTER THE HOME FOR THE PURPOSE OF PREVENTING THE DISPOSAL OF THE CONTRABAND WHILE OTHER OFFICERS OBTAIN A WARRANT. SIMILARLY, THE POLICE OFFICER SHOULD AVOID SECURING THE PREMISES FROM THE OUTSIDE UNLESS PROBABLE CAUSE TO ARREST SOMEONE OUTSIDE THE RESIDENCE EXISTS. AFTER THE OFFICER DETERMINES THAT AN INDIVIDUAL IS AN OCCUPANT OF THE RESIDENCE AND BEFORE THE OFFICER QUESTIONS THE OCCUPANT REGARDING OWNERSHIP OF THE MARIHUANA PLANT, THE OCCUPANT SHOULD BE ADVISED OF HIS MIRANDA RIGHTS. EVEN THOUGH THE OFFICER DOES NOT NEED AN ARREST WARRANT TO ARREST INDIVIDUALS ON THE PREMISES AT THE TIME OF HIS SEIZURE OF THE PLANT PURSUANT TO A SEARCH WARRANT, THE BETTER COURSE OF ACTION WOULD BE TO SEEK A CRIMINAL COMPLAINT AND A NOTIFY LETTER OF ARREST FOR THOSE CHARGED. FOOTNOTES ARE INCLUDED. (AUTHOR ABSTRACT MODIFIED--MLC)