What are your feelings on this... Arrest warrant for person A, information reveals person A is staying at person B's house. You go to person B's house and they give you consent to enter. You explain that you would like to search for person A. Person B then asks you to leave. Any recourse because you have already been invited in? Suppose same scenario but you see person A in the house, but are asked to leave? What do you guys think?
Posted by: 94c
consent can be given and consent can be taken away.
Of course, exigent circumstances can now come into play.
If all you need is an arrest warrant to grab A in his home then he doesn't have any more added protection in someone else's house. Having said that, If you do this against B's wishes then you could be liable to B for any damages that may occur.
Find a gun or anything else and you're also out of luck. (As far as using it in court.)
The bottom line is if you are only concerned with grabbing A and getting the hell out then it's O.K. to be a little pushy. Anything else, then get a body warrant for A and you are now legally on the premises and can use anything in plain view against A or B.
Posted by: LA Copper
A Steagald (sp?) warrant would do nicely. It allows you to go into Person A's house to look for Person B.
Posted by: 2-Delta
I will probably be going back to court for a search warrant for this particular case. Thanks guys for your thoughts.
Posted by: NEPS
94c put it very well. I would add, however, the answer to one unanswered question.
If invited in to the house by B to talk, the officer would be able to arrest A if the officer saw him inside the residence in plain view. This would be true even if B then told the officer to leave. This is the same as if B had invited the officer in to talk, having forgotten that he had just laid out some fat lines on the living room table. Once the officer sees the cocaine even if B tells him to leave the officer may still seize the contraband and, for that matter, B. The officer who seizes the coke or arrests A may not conduct a further search (unless there is some other exigency) and must leave as directed (unless, with probable cause, he intends to seek a search warrant and must secure the house from within against tampering until a warrant is issued).
The request to come in must not be ambiguous, according to Comm. v. Rogers, 444 Mass. 234 (2005). The court ruled that when Off. Ellsworth asked Rose where he could find Rogers the question was ambiguous. Strictly interpreted, the question could be a request for information on Rogers' location, not a request to come in.
The response of the person from whom consent is requested must also be unambiguous. In the same case the response by Rogers' girlfriend of stepping to the side and pointing to the rear of the apartment was also ambiguous: It could have meant just, "That's where he is located," or "Please come in and see him by going that way."
In addition, the consent to enter must be voluntary, not mere acquiesence to a show of authority by the police. The court in this case was concerned about this too because it was nearly 5 AM and there were three uniformed police officers and they were armed and they did not identify themselves while they were knocking on the door and they did not tell the defendant's girlfriend why they were interested in Rogers.
Ambiguous requests or answers or lack of clear voluntariness will lead to a finding that consent to enter was not given.
The fact that the police were there in response to a complaint that Rogers had robbed the complainant of the crack she had just bought from him less than an hour before in the apartment and the officers had been to Rogers' apartment at least ten previous times for complaints about drugs, prostitution, and fighting led Justice Greaney into a classic dissent including the observation: "After all, the police were not seeking entry to high tea at the Ritz. They were there to deal with serious crimes that had just been reported, and in Rose and the defendant, they were dealing with two veterans of police encounters."
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