The DA’s office refused to accept charges on what appears to be a righteous drug and drug distribution paraphernalia seizure
BarkGrowlBite
January 25, 2018
Recently I was asked for my ideas on the following police investigation report:
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On December 14, 2017 at approximately 6:45 pm I, Officer J. Alaniz #915 with the Shoreacres Police Department, was dispatched to 3303 -------- for a felony warrant arrest on M------- M---- (DOB 12-1-89). Dispatch informed me that they received an anonymous call stating that she is currently at said address. Officer Lilley #914 and myself went to the address to make contact with the homeowner. Upon arriving I noticed the garage half opened and a distinct odor emitting from the garage that, through training and experience, lead me to believe there was narcotics present. A male immediately ran to the back and then returned a few moments later and shouted who was outside and that is when my partner made our presence known by saying “POLICE”. We then entered the garage with our weapons drawn and I immediately noticed a small bag of marijuana, black scale and zip lock baggies sitting on the table. Officer Lilley asked the male where M------- M---- was and he replied that she was in the backyard. I identified the male as J--- E--------- (DOB 4-16-88) and Officer Lilley went to the backyard to look for M------- but only found her sister M------ M---- (DOB 7-21-91). M------ told Officer Lilley that she didn’t know where her sister went. I asked E--------- if he had any other narcotics other than what was on the table and he told me no. As I was walking around the garage I noticed a closet door halfway open and when I looked inside I noticed a large gallon size zip lock bag full of a green leafy substance. I then asked M------ for permission to search her purse and she gave me verbal consent. I found a small green container with 5 Xanax pills inside. I contacted the Harris County DA’s office and spoke to ADA C. Lu and explained to her what we had found. ADA Lu told me that she would not accept the charges for the possible narcotics and paraphernalia or for distribution. ADA Lu told me since we were not invited into the garage we can not file charges on E--------- for the green leafy substance found in the garage. The two individuals were released and not charged with a crime. The green leafy substance and paraphernalia was tagged as evidence (D0000886082) and taken to Shoreacres PD. M------- M---- was not located.
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This is what I think. If the officers are telling the truth ... shame, shame on the District Attorney's office.
Marijuana gives out a strong distinctive odor. If the cops smelled it coming out of the garage they had probable cause to enter the garage without a search warrant
Of course, it would have been better had they secured a warrant before entering the garage, but waiting for the warrant could have given the suspects time to destroy the evidence.
As for the closet with the half-way open door, the officers had no right to enter without a search warrant or permission of a person legally in charge of the premises. They did not say that an odor was being emitted from the closet. The marijuana inside was not in plain sight. They did not see it until they looked inside. Thus they had no probable cause to enter the closet.
I wonder if this isn't the result of District Attorney Kim Ogg's stated position on pot: Ogg believes the residents of Harris County will be better served by redirecting tax dollars toward the prosecution of violent criminals, not the prosecution of misdemeanor marijuana cases.
While this is clearly not a misdemeanor case, Assistant DA Lu may very well have been influenced by Ogg’s soft-on-pot position and immediately jumped to the conclusion that despite the strong odor of marijuana, the officers had no right to enter the garage.
J--- E--------- was busted 10 times between 2005 and 2015. Seven of those arrests were for possession of marijuana. One was for possession of Xanax and another for distribution of Xanax. And one was for evading arrest in a motor vehicle. On October 30, 2010 he was sentenced to serve 14 months in state jail. This arrest record is only for Harris County. He has probably been arrested in other jurisdictions.
The woman they were looking for was wanted for violation of probation. She was on probation for burglary of a vehicle and abuse of the elderly, a female over 65.
Shame, shame on the district attorney’s office for refusing to file any charges.
EDITOR’S NOTE: Big Jolly Times also had a post on this case. Here are an attorney’s comments on this case:
Kim is NOT anti-cop. What she is big on is the authorities following the law.
I can’t tell from the facts set out in the officer’s narrative but if the defendant was my client, I would be screaming bloody murder over a warrantless intrusion into a home without exigent circumstances. I don’t see any here but I don’t have all of the facts.
Remember, the Supreme Court has said that the Fourth Amendment prohibits only unreasonable searches and warrantless searches are unreasonable unless they fall into a specific exception to the warrant requirement like search incident to arrest or a warrantless search of a motor vehicle if there is sufficient probable cause to get a warrant.
Cops for years have been screaming every time an assistant district attorney at intake refuses charges. Intake was created in the 1970s to keep crap cases out of the system. It appears from this “narrative” that the ADA considered the legality of the search and determined the officer lacked exigent circumstances.
The Supreme Court also has held that just having an arrest warrant does not give the authorities to enter a residence other than the residence of the person named in the warrant. Getting a tip from an unnamed source to a dispatcher that someone with an open warrant is at someone else’s home isn’t sufficient to allow the police to search the third person’s property. If they had seen 10 kilos of cocaine on the kitchen table, the result should have been the same.
The bottom line is that the constitution, that pesky document, has a preference for searches and arrests approved by neutral judges rather than allowing the police to act on their own.
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