'Circumstances' So 'Exigent' Narcotics Agents Could Have Watched 'Gone With The Wind' And Had Time To Spare

from the words-are-meaningless dept

Nothing says “exigency” like 270+ minutes of standing around.

Although the caller placed the call around noon, agents did not go to appellant’s apartment until 4:30 p.m.

Lake County narcotics agents thought they had a live meth lab on their hands but had no idea how to access the premises without obtaining a warrant. Agents were pretty sure they wouldn’t be obtaining a warrant, even though there was plenty of time to do so. From the suppression order [PDF]:

LCNA agents decided to do a “knock and talk” at appellant’s apartment to dispel their suspicions that his residence was being used to manufacture methamphetamine. Special Agent 88 testified that a “knock and talk” investigation is used when authorities do not have enough probable cause to obtain a search warrant. Agent 76 testified that regardless of whether anybody opened the door or not, they still intended to go inside the apartment due to “exigent circumstances.”

The supposed “exigent circumstances” was the suspicion that it was an active meth lab, thanks to the call agents received in which the caller said she “smelled something.” The LCNA knock and talk received no answer (initially) and the agents smelled nothing indicating a batch of meth was currently cooking.

Other agents set up surveillance in the area. Special agent 76 testified that when they arrived, they did not smell any chemical odor. The agents knocked on the apartment door. They heard whispering and shuffling inside but no one answered. The agents continued to knock.

A few minutes later, the knock was answered. Inside were two men (neither of which are this case’s appellant) who “appeared nervous,” one of whom had recently purchased pseudoephedrine according to the NLEX database (which tracks OTC drug purchases). But other than nervousness, nothing else was emitting an odor, much less congealing into a meth kitchen.

The agents believed there was a strong possibility that methamphetamine was being or had been manufactured inside appellant’s home. Special agents 76 and 88 decided to conduct a protective sweep of the apartment. Both agents testified that the purpose of the sweep was to check for other persons or weapons in the apartment or an active one-pot cook. Because the apartment was small and sparsely furnished, the sweep was rather quick. The sweep revealed that no one else was in the apartment and there was no obvious evidence of methamphetamine manufacturing. However, the agents noticed a white powdery substance on a nightstand along with a razor.4 The agents also saw some black filled garbage bags. One bag contained opened pseudoephedrine packages. The agents secured the apartment and left.

The footnote:

4 The white powder was later tested. It was not a controlled substance.

So, four hours of narcotics agents milling around, trying to find an excuse to search a residence without a warrant. And nothing to show for it but claims that the appellant sometimes sold pseudoephedrine to one of the people who answered the knock and talk, a bag of opened OTC drug packages, and a white, non-illicit powder.

With plenty of time to obtain a warrant — but apparently nothing probable cause-ish with which to obtain it with — the state leans on “exigency,” only to find the Ohio Supreme Court yanking away its support. It doesn’t help that the agents “planned” on using “exigent circumstances” to excuse their warrantless search.

The court notes that previous decisions have found that the odor of methamphetamine manufacture is a legitimate exigent circumstances. But the lack of such an odor very definitely is not.

[W]hen the agents arrived at appellant’s apartment, they did not smell any chemical or toxic odor and did not observe any criminal activity. Although Mr. Kline and Mr. Sanguedolce appeared nervous in dealing with authorities, they did not attempt to flee or block access to appellant’s apartment. When the apartment door opened, the agents observed nothing in plain view to indicate the presence of a methamphetamine lab. Although it was known that appellant had purchased pseudoephedrine, the agents acknowledged that individuals do purchase it for others to use in other locations. In fact, Mr. Sanguedolce told authorities that very same thing, i.e., that appellant had purchased pseudoephedrine for someone else to make elsewhere.

Further, the delay between the call and the eventual entry turned “exigent circumstances” into just “circumstances.”

In this case, there were no exigent circumstances as there was no “immediate need” or emergency at hand, i.e., the agents waited four and a half hours after receiving the allegations from the caller before conducting the search (during which time they had the opportunity but never intended to obtain a search warrant). Clearly, waiting four and a half hours to implement a search does not support the state’s argument related to the “immediate need” envisioned under R.C. 2933.33(A). It simply is not an emergency four and a half hours later. More importantly, it is a basic principle under the Fourth Amendment that a warrant is required to search and seize articles inside a home unless there are exigent circumstances. As stated, no exigent circumstances existed in this case.

A warrantless search for criminal evidence — absent of anything supporting warrantless entry — is a search that may as well have never taken place. The lower court’s judgment is reversed, resulting in suppressed evidence and, very likely, the overturning of a conviction.

Also of note is how little it takes to attract law enforcement attention by purchasing OTC pseudoephedrine.

LCNA agents confirmed that appellant was the renter of the apartment. They looked him up in the National Precursor Log Exchange (“NPLEx”) which showed that appellant had purchased pseudoephedrine nine times over the past three and a half months including a purchase that day from a local pharmacy.

That’s a little over one purchase every two weeks. Depending on the number of people using pseudoephedrine products in the same house, that’s hardly meth lab-supporting frequency. What’s shown here doesn’t necessarily indicate the system flags purchasers who acquire pseudoephedrine this frequently, but it does imply that if law enforcement officers are looking for a reason to search a vehicle/house, this level of activity is considered suspicious.

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Comments on “'Circumstances' So 'Exigent' Narcotics Agents Could Have Watched 'Gone With The Wind' And Had Time To Spare”

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That One Guy (profile) says:

"Warrant? What's that?"

the agents waited four and a half hours after receiving the allegations from the caller before conducting the search (during which time they had the opportunity but never intended to obtain a search warrant).

They knew ahead of time that they didn’t have enough to get a warrant, or maybe they were just lazy and expected the courts to back them up, so they didn’t even try to get a warrant.

While it’s nice that any evidence gathered will be suppressed, likely leading to the case tanking, the fact that they were deliberately ignoring the requirement for a warrant should result in every last one of them being fired and barred from any law enforcement position for life. People that pay attention to the laws only when it’s convenient for them are not people you want (theoretically)enforcing the laws.

Coyne Tibbets (profile) says:

Want to be suspicious? There's always an excuse

…nine purchases…three and a half months…purchase every two weeks…hardly lab-supporting frequency…if law enforcement officers are looking for a reason to search a vehicle/house, this level of activity is considered suspicious.

Somehow, I don’t think “frequency” mattered here. What if he’d only bought it only once in three and a half months? I bet LCNA would have considered that suspicious, too.

In fact, I bet if NPLEx had shown zero purchases LCNA would have found that suspicious on the grounds that he was clearly buying pseudoephedrine under a false name.

Anonymous Coward says:

Re: Want to be suspicious? There's always an excuse

He might not even have had to.

I’m pretty certain Techdirt has covered a couple of cases where people were charged with acting suspicious on the basis that they did not appear suspicious because they were avoiding acting suspicious, which made them suspicious.

Suspicious suspicsuspicouscious.

Skeeter says:

Freedom's Loss - Big Brother's Gain

I don’t think anyone is paying that much attention to how fast the 4th Amendment is being intentionally destroyed by both the liberal courts and the totalitarian law enforcement communities.

While I appreciate ‘known felons’ being caught, what does it matter when they do less time for murder than it took me to get a college degree? At the same time, myself and others like me are foregoing our rights, hand-over-fist, because the police are INTENT to be gestapo to capture people they have no means of punishing in any way. It’s like ‘tag-and-release’ in our society, so why take our rights, if you don’t plan to do anything with the losses you demand? Ask the cops and the Justice Department, and watch for that deer-in-the-headlights stare they give you. Be named Clinton, and know you’ll never do a day in prison, even for treason!

Those who are willing to sacrifice their freedoms for safety deserve neither.

DOlz (profile) says:

“That’s a little over one purchase every two weeks.”

Oh goody I guess they can search my house also. During my allergy season I have to buy a box of the private brand Allegra-D every other week because I can only buy one box a time of 15 tablets.

They’ve gamed the system so any activity can be considered suspicious. Honestly I don’t know why they even pretend to care about our rights anymore.

JP (profile) says:

Re: Re:

Same here. I use Zyrtec D daily for allergies. Guess I better straighten up the house.

On a side note, you can get a prescription from your doctor for your Allegra-D which should allow you to at least buy 3 boxes at a time. I found it stupid that I had to go to the pharmacy every 11 days in order to buy a single 12 day supply of OTC allergy medication at a time so I asked my doctor about it.

Anonymous Coward says:

To give people who might be unfamiliar a little more context, pseudoephedrine is a decongestant commonly used in stuff like Allegra, Claritin, Sudafed, and a dozen or more other cold and allergy medications. I’ve neither watched Breaking Bad, nor bothered to otherwise look up the details, but it’s also used in the manufacture of meth.

As such the USA slapped some serious restrictions on it a decade or so ago. From something you could buy in whatever quantities you want just grab it off the shelf, it became a literal over the counter medication at the pharmacy. Not only that, they scan/validate your driver’s license with a central database (the NLEX database I presume) before selling it to you. And there are restrictions on how much you can buy in a given timeframe.

Which brings me to my point. I take OTC medication containing it daily for allergies. You flat out cannot buy more than a 15 day supply at once(well I supposed you might with a prescription from a doctor). This works out to 3.6 grams if you’re wanting 24 hour coverage. The 30 day limit I was told is 9 grams. Not a huge problem for honest people, but it does prevent you from buying that 15 day supply in too rapid a succession, and cause issues when switching between buying 10 day and 15 day supplies. In short, if you’re taking it regularly, you will rapidly find yourself going to the pharmacy about twice a month to buy it. So “nine times over the past three and a half months” is bog fucking standard for anyone who takes pseudoephedrine regularly for allergy control. Nothing should be suspicious about it.

Anonymous Coward says:

Re: Re:

“The call claim was fake guys. They got the list of people purchasing pseudoephedrine and worked backward.”

In this situation it sure does look that way.

They just so happened to get a call about someone that just so happened to be purchasing pseudoephedrine so they investigated it and it turns out he wasn’t doing anything illegal? That sounds unlikely. As you said they were likely working backwards and made up the call aspect of it.

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