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Appeals Court Tells Cops They Can’t Hold A House Hostage For Hours Before Finally Deciding To Get A Warrant

Most people would respond to a possible drug overdose by seeking immediate medical attention and following up with medical professionals to see how the victim is faring.

I mean, that’s what the EMTs who responded to a drug overdose call did. They took Corban Elmore’s son to the emergency room and, from there, medical professionals did everything they could to return the teen to health.

Unfortunately, police officers are also first responders. So, they showed up and treated it like a crime scene. To be fair, a drug overdose would suggest the presence of illegal drugs. But their decision to hold a home hostage while they engaged in an ancillary investigation shows these cops were only concerned with turning an unfortunate event into criminal charges.

And they got them, too. Only it was nothing drug-related. Instead, by taking over Elmore’s house for most of the day and kind of wandering around the property, they managed to nail Elmore on felon-in-possession charges after finding guns on the property.

Elmore’s son was taken to the hospital by EMTs at 11 am. An officer arrived at Elmore’s house before the EMTs showed up and asked if Elmore knew what drugs his son had taken. Elmore indicated a metal box in his son’s room. Inside the box were drugs including fentanyl and Propofol. The EMTs took the box with them and, after administering Narcan, managed to restore Elmore’s son’s breathing.

That should have been the end of that. But it wasn’t. [h/t Short Circuit/Institute for Justice]

A half-hour later, Detective Patrick Smith showed up and told officers to “secure” the house and prevent anyone from leaving or entering. By that point, Elmore was already headed to hospital, trailing the ambulance that had picked up his son.

At 2:00 pm, the officers were still there. Elmore had yet to return from the hospital, but his wife (Jessica Hayes) had returned from her own hospital stay (for a foot injury) with their younger child. Officers refused to allow Hayes to enter home. When Elmore returned, they did the same thing. The officers claimed the house was a “crime scene” and that no one would be allowed to enter. They then stated they were looking for “whatever else might be in there [that is] drug-related.”

The drugs were with the EMTs. The potential “suspect” (by which I mean the teenage overdose victim) was awake and could easily be found at the hospital if officers needed someone to question. And yet, the officers on the scene continued to pretend the house must remain intact. At no point, did any officer agree to accompany anyone inside to feed the pets or retrieve any items they might need while being forcibly prevented from entering their own home.

Meanwhile, back at the sheriff’s office, the supposed investigation slowly moved forward. Detective Smith made a series of phone calls, speaking to the EMTs and asking a pharmacist about the drugs found in the metal box HE ALREADY HAD IN HIS POSSESSION.

Apparently having nothing better to do, the officers at the house took pictures of the exterior of the home, supposedly for a pending warrant application. That’s when the scope of the investigation suddenly changed. From the decision [PDF]:

Back at Elmore’s property, officers on the scene took photos of the home’s exterior for the search-warrant application. In so doing, one officer saw what looked like a gun safe and a long, plastic gun carrier through the front windows. The officer relayed this information to Smith, which prompted him to run a criminal-history check on Elmore. The check revealed that Elmore had four felony convictions.

In the home of the Second Amendment, it is truly hard to fathom why the observation of gun paraphernalia would have justified a criminal records search. Guns are legal to own (not for felons, of course, but the cops didn’t know that when they “observed” this) and this “investigation” was supposedly focused on “drug-related” criminal activity. Given these facts, it’s clear Detective Smith was just looking for any reason at all that might justify officers taking a home hostage for hours on end simply because one officer was the first person on the scene of a reported drug overdose.

Now that the detective finally had something to work with, he actually started working. Eight hours after taking over Elmore’s home, Smith applied for a search warrant, citing specifically the gun safe observed by officers and Elmore’s prior felony conviction. He got the warrant 20 minutes later. Then he rushed to the scene did this:

With the warrant in hand, Smith stopped for food at McDonald’s and then drove to Elmore’s property.

The lower court saw no problem with this, refusing to suppress the evidence obtained from a search performed more than eight hours after law enforcement took over Elmore’s home. It also had no problem with the multiple “delays” during Detective Smith’s investigation, which included not only his unhurried stop for some food, but his unilateral decision to shift the focus from drugs to felon-in-possession charges.

The Tenth Circuit Appeals Court is not nearly as amenable. What the lower court ruled to be good, if not particularly great, police work, the Tenth Circuit says is unacceptable and unconstitutional. It says that while the officers may have initially been justified in seizing the home prior to an expected search (and accompanying warrant), any credible claims of exigent circumstances steadily dissipated as Detective Smith wandered off on investigative tangents for several hours before seeking a warrant and McDonald’s.

Here, like in Shrum and unlike in McArthur, the officers denied Elmore any entry into his home, even with police supervision. And critically, the government has not identified, nor can we discern, any law-enforcement interest that justified this encroachment on Elmore’s Fourth Amendment interests in his home. On the contrary, the government concedes that the officers could have “gone further to accommodate . . . Elmore[]” and authorized “brief, supervised access to the home.” Indeed, allowing supervised entry would have achieved the only asserted law enforcement need—preventing the destruction of evidence—while protecting Elmore’s Fourth Amendment interests in his home. Because the officers made no effort, much less a reasonable effort, to strike a sound balance between those competing interests, this factor weighs heavily against the government.

Also, unlike in another case cited by the government, the extended duration of the home seizure wasn’t due to the unavailability of a magistrate to approve a warrant. In that case, a 19-hour seizure occurred, but most of those hours were nighttime hours where it might have been much more difficult to find a judge. In contrast, this entire debacle occurred during business hours — something confirmed by the fact that it only took the detective 20 minutes to get his warrant signed.

Time is of the essence, says the Tenth, especially when that’s the argument (exigent circumstances) the government wants to rely on:

In short, after seizing a home without a warrant, an officer must make it a priority to obtain a search warrant that complies with the Fourth Amendment. This obligation requires the officer to act with diligence to present a warrant application to a judicial officer at the earliest reasonable time based on the probable cause the officer possessed at the time of the seizure. Smith failed to act with such diligence here. Instead, he waited an unreasonably long time to obtain a search warrant so that he could investigate not only the overdose event, but also Elmore for unrelated criminal conduct. So this factor also weighs heavily against the government.

Because it was an unconstitutional seizure, the fact that the search was supported by a warrant doesn’t matter. And there’s no inevitable discovery available as a defense here, either. Even though it’s true the warrant very eventually obtained by the detective would have resulted in the discovery of illegally-owned guns, the warrant itself relied on information (the gun safe seen through the house windows) that would not have been discovered without the unconstitutional seizure of the home. (And, for that matter, was evidence of nothing until Detective Smith — for reasons completely unexplained — decided to run a criminal background search on the father of the overdose victim while supposedly investigating the overdose itself.)

Even that argument doesn’t matter because the government never explicitly raised it. The end result is a suppression of evidence, which means officers took over a man’s house while his son was hospitalized to accomplish little more than providing Elmore with a solid basis for civil lawsuit.

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