'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.
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.