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Hammer O'Justice
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4374
Experience:  Almost 12 years of legal experience, primarily in criminal law
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Search and seizure: Police request entry into a person's

Customer Question

Search and seizure: Police request entry into a person's home to look for a suspicious man, the homeowner alled the seach for the man. Marijuana plants were found and the homeowner was immediately arrested. No search warrant was asked for nor signed for the Marijuana plants that were not the the condition of the search for a suspicious man. The plants were taken, moved to the police Department and destroyed without testing for THC.
Is this case doable?
Submitted: 4 months ago.
Category: Criminal Law
Expert:  Hammer O'Justice replied 4 months ago.


Unfortunately there is nothing wrong with what the police did here. The homeowner gave voluntary permission for the search. The fact that police were not looking for marijuana plants does not mean they have to ignore contraband when they see it in a place where they are lawfully searching. There is something called the "plain view doctrine" that was established decades ago by the Supreme Court. It basically says that a seizure of contraband without a warrant is legal if:

  1. the officer was lawfully present at the place where the evidence can be plainly viewed,
  2. the officer had a lawful right of access to the object, and
  3. the incriminating character of the object to be “immediately apparent.”

Here it sounds like all of those elements are met. 1 and 2 are met by the homeowner's consent, and I am sure the police were able to recognize a marijuana plant to meet no. 3. Typically the officers would have to have a warrant to do such a search, but the homeowner's consent as well as the plain view doctrine are exceptions to the warrant requirement so they are considered legitimate searches. Sorry I can't give you better news.

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