Upstairs Search Not Incident To Downstairs Arrest; After Acquired Warrant Fails

State v. McGrane, no. 06-0431 (Iowa June 15, 2007)

A deputy was informed that McGrane, with a warrant outstanding, was in a house in Mason City. Another deputy went to the address and it was determined that McGrane was upstairs. A deputy ordered McGrane downstairs, and observed McGrane concealing something behind a curtain as he emerged from a curtained off area.

The first deputy arrived at the scene, and was informed that McGrane was under arrest and that he'd been observed concealing something upstairs. Thereupon two deputies went back upstairs and there discovered marijuana, cash, and methamphetamine. On that basis a warrant was obtained and served and more contraband was seized in the house.

The district court granted McGrane's motion to suppress and discretionary review followed.

The court found that the initial search of the upstairs of the home could not be a search incident to arrest, because it must be confined to the suspect's 'grab area'. Because the justification of a search incident to arrest is to prevent spoliation of evidence or gaining a weapon and because the suspect immediately left the upstairs area, a search of the upstairs when the suspect was downstairs could not be justified. A protective sweep could not be justified as well, because there was no evidence that McGrane had firearms or otherwise was dangerous or that anyone else in the home was.

Finally, because police were not rightfully in the area that they were entitled to be, plain view could not be invoked to justify a warrantless search. The later obtained search warrant was not proved to be a genuinely independent source of the evidence obtained in the home.

This case presents problems for officers involved in drug suppression. It also points out that what is good police work sometimes fails in translation when considered in hindsight.

However, the officer's good observation of the suspect concealing something and the initially evasive responses of other occupants of the house should have triggered the correct response which would have been to secure the premises and obtain a warrant to search the area that the suspect had been in, based on that information. That would have led to the discovery of the contraband in plain sight.

The takehome's simple. Secure the area and get the warrant as soon as there's a reasonable and artuiculable suspicion that criminal activity is afoot. Remember the maxims of W. Edwards Deming: It's better to build quality into your work than to go around afterwards trying to fix it.