Warrant fib prompts drug suppression

A lie about the existence of a search warrant allowed a group of police officers to comb through an apartment and find crack cocaine and digital scales, leading to the conviction of one of the occupants after a federal judge refused to suppress the drug evidence.

Had the ruling been affirmed on appeal, “it would have opened the door to a massive amount of gamesmanship” by law enforcement, said former Florida police officer Seth Stoughton. He now teaches criminal law and procedure at the University of South Carolina School of Law.

But the 4^th U.S. Circuit Court of Appeals reversed the ruling in U.S. v. Rush (VLW 015-2-192), a Dec. 21 opinion that could reach beyond traditional search-and-seizure scenarios, said George Laughrun, a criminal defense lawyer in Charlotte.

“I think they [police] have to be a lot more careful than they were in the past in pushing the envelope,” he added.

The central issue in the case was whether the crack and scales seized in the apartment could be admitted under the so-called “good-faith exception” to the rule that excludes evidence collected during unconstitutional searches.

U.S. District Judge John Copenhaver of West Virginia, where the incident occurred, found that the exception applied because the officers had unintentionally impaired Rush’s rights “in a justifiable effort” to protect a woman who lived at the apartment.

She told police that she suspected Rush, who had been staying with her, was dealing drugs. She also said she was afraid of Rush, though she did not indicate that he had harmed or threatened her, according to the 4^th Circuit’s opinion.

She gave police a key to her apartment and signed a consent form authorizing the search. But Rush had a right to object to the search because he also was an occupant of the residence at the time.

Writing for the 4^th Circuit’s unanimous three-judge panel, Judge James Wynn noted the U.S. Supreme Court’s landmark 1968 decision in Bumper v. North Carolina, which established that when “a law enforcement officer claims authority to search a home under warrant, he announces in effect that the occupant has no right to resist the search.”

Wynn added that the high court has only applied the good-faith exception “when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful.”

“Here,” Wynn concluded, “there can be no doubt that a reasonable officer would know that deliberately lying about the existence of a warrant would violate the defendant’s Fourth Amendment rights.”

Rush’s federal public defender, Rhett Johnson, and the government’s attorney, Assistant U.S. Attorney John Frail, both of Charleston, West Virginia, could not be reached for comment.

After learning about Rush, Laughrun immediately shared the decision with his law partners at his firm in Charlotte. He planned to leverage the opinion to suppress evidence, including DWI blood tests, taken after an officer threatened to secure a warrant.

“I think you could argue to a judge that just because he [the officer] says he’s going to get a warrant doesn’t mean he’s going to get one,” Laughrun said. “Their normal response is, ‘No, I don’t have a warrant but my partner can go get one and I’ll stand right here.’ This at least gives you an argument against that.”

Stoughton, the police officer-turned-law professor, said Copenhaver apparently “misunderstood what good faith refers to.”

Charles Grose, a criminal defense lawyer in Greenwood, South Carolina, added in an email that the “good-faith exception was never intended to apply to situations when an officer can contrive a ‘good’ reason to deliberately lie about having a warrant.”

Stoughton also disagreed with Copenhaver’s assertion that it was unnecessary to suppress the evidence against Rush, as doing so would probably not deter police misconduct. The judge said there was “a vanishingly low likelihood of future recurrences” of the same behavior that led to the unconstitutional search in this case.

“This is very easy behavior to engage in. There’s always going to be someone to protect or some crime that requires investigation,” Stoughton said. “The 4^th Circuit headed off what could have been a dangerous and alarming approach to Fourth Amendment jurisprudence.”

He added that an affirmation of Copenhaver’s ruling would have “changed the nature of policing, and not for the better.”

– By Phillip Bantz