Posted on 07/11/2005 10:59:31 AM PDT by Excuse_My_Bellicosity
Most visitors just knock on the door. But when a detective approached Troy Levi Miller's home one day last year, he made no attempt to contact anyone inside.
Instead, he wiped a sterile cloth over the doorknob and left.
A test on the cloth allegedly revealed traces of methamphetamine, and those results helped a narcotics task force get a warrant to search the South Salt Lake house. But now, U.S. District Judge Dale Kimball has thrown out the test as a violation of the Fourth Amendment prohibition against unreasonable search and seizure.
Kimball's ruling was the third one from a federal court in Utah - and only the fourth in the nation - involving the Ionscan 400B, a machine that analyzes microscopic particles picked up by wiping a surface with a sterile cloth. The cloth is placed in the machine, which gives an alert when certain substances, such as cocaine and methamphetamine, are found.
A doorknob is part of the private area of a residence and the officer should have gotten the search warrant before taking the swab, Kimball said.
"A visitor could not turn the doorknob without invading the privacy of the home's occupants - the only purpose for turning the doorknob is to gain access to the privacy of the home," the judge wrote in a June 30 decision. "A doorknob is not something that is transitory that could be borrowed, taken, or moved to another location. . . . It is a component part of the home."
However, Miller isn't off the hook. Kimball also decided there was enough other evidence, without the test results, to provide probable cause for a search warrant.
That leaves in place felony charges of possession of a controlled substance and aiding in the manufacture and sale of methamphetamine against the 34-year-old Miller.
Police argue that the presence of controlled substances shows that individuals who use or sell narcotics touched the tested area and is evidence of drug dealing in the residence.
The dispute over the technology centers on whether a doorknob is part of a home, a factor that helps determine whether police must get a search warrant before getting a swab. In addition, defense attorneys note that anyone can touch a doorknob, and argue that the mere presence of drug particles is no evidence of a crime.
The three Utah rulings and a 1999 decision out of the Virgin Islands have split on the issue.
In the Virgin Islands case, a trial judge threw out the analysis of a swab taken from a home's screen door, saying the search for marijuana residue violated the Fourth Amendment.
In Utah, U.S. District Judge Ted Stewart took a similar stand, ruling in August that the Ionscan test of an Ogden man's doorknob required a warrant. However, he upheld a search of Anthony Diviase Mora's home, saying other evidence provided probable cause.
Just a few months before, his colleague, Judge Tena Campbell, refused to throw out evidence against Dennis Daybell of Magna obtained through an Ionscan test.
She said the procedure reveals nothing about the inside of a house and compared use of the machine to having a trained dog sniff for drugs.
pmanson@sltrib.com
I think that it does. If the judge had ruled that the swab was probable cause for a warrant, then that would be all that would be required for a warrant. Probable cause is probable cause. That would allow the cops to use exactly the scenario that I described to obtain search warrants. He ruled that it was not admissable, which disallows them from doing just that.
It was an important ruling, and I am glad that it went the way that it did. It would have been horrible had it gone the other way. It was fortunate that the cops had probable cause other than the swab. A search warrant doesn't require multiple instances of probable cause. One will do, but several 'probable causes' decrease the chances of dismissal.
Unless you're turning into the wind...
(sorry, couldn't resist)
Violent sex crime?
"The cops need to go find a different method of determining probably cause."
--- Its probably now simplier to just get an order to eminent domain your house now. Search it once they take possession. If done quietly, it could be easier than getting a search warrent. (Speculation -- planning commisioners are easier to buy off then judges)
Agreed, but if the officers do not have a probable cause that is strong enough for a warrant, a number of less than probable causes can indeed equal up to a probable cause. For example, if I am seen cavorting with nefarious characters, this may not be enough for a search warrant. If I recently purchase an expensive vehicle with no obvious new source of income, a warrant may still not be granted. If I have less than savory characters hanging out at my house all hours of the day, a warrant may still not be issued. But all these taken together may be enough for a judge to issue the warrant. (Please don't nitpick these examples, I am just trying to make a point not present solid legal precedence.)
As I read the article, this is what happen, especially since the judge even commented that their was sufficient grounds for a warrant from other probable causes.
But we are in agreement that this was a good ruling. A huge burden is place on law enforcement to ensure law-abiding citizens are not harassed or unduly inconvenienced. Unfortunately, the criminal element (aided by less than ethical lawyers) finds ways to use that burden to hide from justice.
" it is extremly unlikely any judge would sign off on a warrant based on this little "evidence". "
--- Up until a short while ago, I would have said that 5 judges would have never signed off on eminent domain refering to private enterprise.
You touch on another topic--police or law enforcement officers in the drug trade, either overtly or by bribery.
The ex-Sheriff of Cameron County Texas was just sentenced for being involved in the drug trade. Unfortunately, this is not unusual, at least in Texas.
I began collecting stories about LEOs in the drug trade some years ago in prep for a book that was never developed. It wasn't long before I had notes on guilty LEOs in all 254 counties in Texas. There was no interest in the project from editors because the facts were so commonplace as to not raise any eyebrows.
Rememember this commonplace saying: Narks always have the best dope. (implying they can take their pick from confiscated stashes)
ah.. then we get back to the point that the WoD is a waste of time and money.. especially if so many officers are using confiscations as product for off duty business.
Not quite the same thing, but I get your point.
Not quite the same thing, but I get your point.
Not just confiscations for off duty business. The Sherriff in question for example was taking bribes to look the other way and was actively involved in transporting and money laundering.
There are lots of ways that carrying a badge can help defeat the War on Drugs. And they've found all of them.
I don't know. I'll have to axe!
Who was the dumbass judge who signed a warrant based on what is on someone's doorknob? That was the real criminal here.
Hehehehe
As far as your brother in law goes, I wouldn't worry about you getting busted for something he does. The police need to have a suspicion that a crime has been committed to begin looking at you.
I don't think it makes them unpatriotic. All the cops I know are very patriotic. A lot of them are arrogant, though.
D'oh!
My ex-brother-in-law got into meth and totally screwed himself up. My sister divorced him.
Latest word is that he is 14 months sober after doing 2 years in prison in Lompoc, California. That guy ticked me off like you can't believe. I really hope he stays sober and straightens out his life, I really do. I can't stand him but I don't want him to be a burden on everybody else around.
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