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Arrest and warrantless search of a home – no probable cause, exigent circumstances, community caretaker exception, or consent.

State v. Daniel Cervantes, 2011AP1858-CR, District 1, 2/12/13; court of appeals decision (not recommended for publication); case activity

The police lacked probable cause to arrest Cervantes when he opened the door of his apartment (¶¶10-16); there were neither exigent circumstances nor community caretaker grounds for the police to enter Cervantes’s apartment following his arrest to do a protective sweep (¶¶14-23); and his subsequent “consent” to search the apartment was not sufficiently attenuated from the illegal arrest and entries (¶¶24-30). Consequently, the court holds the evidence found during the search must be suppressed.

This case involves the application of well-established Fourth Amendment principles to the facts of this case, so the result is highly dependent on the facts. Given that the court of appeals rejected every justification for the search thrown up by the state, the decision is worth a few minutes’ reading as a lesson on  some of the many ways a search or seizure can be unlawful.

The basic facts are these: Tenants of an apartment building complained to a building manager that Cervantes, also a tenant in the building, had been walking around with a shotgun yelling and cursing at others; the building manager passed that information onto a security guard, who relayed it to the police. (¶2). Two plainclothes and five uniformed police officers went to Cervantes’s apartment and—without first talking with the building manager or any of the complaining tenants—knocked on the door; when Cervantes opened the door after an initial delay, the police grabbed him, pulled him into the hallway, and handcuffed him. (¶3). The uniformed officers then swept the apartment. After finding no one inside, they took Cervantes back into the apartment and asked him if he had any guns. Cervantes said “no.” With the five uniformed police in the room Cervantes was twice asked for consent to search the apartment; mirabile dictu, he consented. (¶4). The police found no guns, but they did find two large baggies of marijuana. (¶4).

The court’s conclusions are summed up nicely in its discussion of the factors used to decide whether Cervantes’s consent to search was tainted by the previous initial illegalities:

¶30      …. While there is no doubt that the officers believed their actions were appropriate, as we have seen, the seizure and arrest of Cervantes upon his opening his door, failing to immediately answer a question and taking a step backward, was not reasonable. This situation was further aggravated when the police swept his apartment after he was arrested. Consequently, the police violated Cervantes’ constitutional rights more than once. He was illegally seized and arrested, and the police unlawfully entered his apartment twice.

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