Court: Planning To Get A Warrant Is As Good As Actually Having A Warrant When Searching A House

What do you give a DEA agent who has everything (but a warrant)? If you're the Seventh Circuit Court of Appeals, you give them the warrant -- the one agents obtained hours after they performed the search of someone's home. From the conclusion of the court's decision [PDF]:

All agree: the DEA entry team entered Huskisson's house unlawfully. We do not condone this illegal behavior by law enforcement; the better practice is to obtain a warrant before entering a home. Ordinarily, the evidence found here would be excluded. But because the government had so much other evidence of probable cause, and had already planned to apply for a warrant before the illegal entry, the evidence is admissible.

It's not just the "better practice." It's a Constitutional requirement. Probable cause alone does not give the government permission to search a person's home. Probable cause simply gives the government what it needs to obtain a warrant to search a home. The home is given the utmost protection by the Fourth Amendment. Here's what the Supreme Court had to say about this issue in 1961:

At the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.

Planning on getting a warrant is not -- and has never been -- the equivalent of obtaining a warrant.

The footnote under this conclusory paragraph is as useless as the Seventh Circuit's opinion, which gives the government a free pass to search first, affidavit later, so long as they have enough probable cause to support a warrant application.

See Order Den. Mot. to Suppress at 9-10, ECF No. 76; Order Den. Pretrial Mot. at 6, ECF No. 165 (denying defendant's motion to reconsider denial of suppression motion); Trial Tr. vol. 2 at 298-99, ECF No. 211 (posttrial order again denying motion to suppress). Additionally, as noted above, at trial three DEA agents testified the plan was always to seek a warrant once Hardy had confirmed there were drugs in Huskisson's home.

The beginning part says the lower court came to the same conclusion: a warrant in mind is as good as a warrant in hand. The second part just confirms the facts of the case: the DEA agents searched a house before obtaining a warrant.

The facts of the case don't help. They don't really explain two consecutive courts' decision to treat a warrantless search as a Constitutional search. The DEA was working with a cooperative drug dealer it had already arrested, using him to set up drug buys with its target, Paul Huskisson. DEA agents listened in on phone calls their informant made, building up plenty of probable cause to support the arrest of Huskisson and the search of his house. Agents listened in on nine calls over the course of a day discussing a drug purchase.

The DEA wanted corroboration Huskisson had illegal drugs inside his house. Agents sent their informant into the house to complete the purchase. The informant gave the drug task force team (DEA agents plus local drug warriors) the signal that he'd seen the methamphetamine inside the house. At that point, law enforcement entered the house and arrested everyone inside. Huskisson refused to consent to a search of his house, but the meth was out and plainly visible to officers.

A few hours after this search, the DEA finally applied for a search warrant.

[T]he warrant application contained the following two sentences that underlie this appeal: "The law enforcement officers observed an open cooler with ten saran wrapped packages that contained suspected methamphetamine. The suspected methamphetamine later field tested positive for the presence of methamphetamine." The magistrate judge issued a search warrant for Huskisson's house around 10:30 p.m. the night of Huskisson's arrest, about four hours after the initial entry.

The lower court said this was fine. Even without the lines about the meth the warrant contained enough probable cause to support a search of the house. So does the appeals court. In both cases, the fact that a house was searched without a warrant is handwaved away by the existence of other probable cause and supporting evidence. But that still doesn't address the illegal entry in the first place.

Nothing in the opinion does. The entire discussion revolves on whether or not the meth seen in plain sight after the illegal entry influenced the obtaining of a warrant four hours after the search occurred.

The court carefully weighed the evidence from both sides; when faced with two inconsistent statements from the same witness, the court credited one based on the totality of the evidence. In so doing, the district court concluded that an errant statement by Detective Kinney did not outweigh the other evidence of the government's plan to request a search warrant, regardless of what they found in the house.

Because the presence of drugs in plain sight apparently didn't nudge the needle on the warrant request (and despite the affidavit including the drugs in plain sight), the lack of a warrant doesn't affect anything. That appears to be the Seventh Circuit standard: as long as law enforcement has some probable cause and plans to seek a search warrant at some point, it can step inside someone's home and take a look around. Everything else explaining away the removal of a warrant requirement is nothing more than rights-damaging filler.