Police Officer Helps Relative Obtain Illegal Drugs, then Uses that Information to Obtain a Search Warrant

The Fourth Amendment to the U.S. Constitution protects people against “unreasonable searches and seizures” by requiring police to obtain a warrant before conducting a search of a person or his or her property. Obtaining a warrant requires convincing a judge that probable cause exists to believe a search will yield evidence relevant to a criminal investigation. A recent case before Seventh Circuit Court of Appeals considered whether a police officer violated the Fourth Amendment by withholding information about his own involvement in an illegal act in his application for a search warrant. While acknowledging that the officer behaved terribly, the court found that his improper motivations did not invalidate the application for a search warrant. The officer withheld information in the application, the court held, but probable cause actually did exist. Scherr v. City of Chicago, 757 F.3d 593 (7th Cir. 2014).

The case was a civil lawsuit for civil rights violations by public officials. The plaintiff’s seven-year-old daughter was diagnosed with a rare form of brain cancer in 2011. The plaintiff learned that cannabis oil, which is derived from marijuana plants, might have therapeutic benefits for her daughter. She began growing her own marijuana plants in 2012, and she was assisted by her father-in-law, an officer with the Chicago Police Department. He provided her with “grow lights” and periodically checked on the plants.

The plaintiff’s daughter died in July 2012. Conflicts quickly developed between the plaintiff and her father-in-law related to details of the obituary and funeral. Several days after the funeral, the father-in-law prepared an affidavit for a search warrant of the plaintiff’s house. All of the evidence in support of the warrant came from his personal observation of fifty marijuana plants in the plaintiff’s basement, but he did not disclose his own involvement in the growing operation. A judge granted a warrant, and at least a dozen DEA agents raided the plaintiff’s home. Since the plaintiff had no use for the plants after her daughter died, she had thrown them all away, and the agents found nothing. She was not arrested, and no charges were ever brought against her.

The plaintiff sued the city, her father-in-law, and another officer for civil rights violations. The trial court dismissed the case for failure to state a claim, and the Seventh Circuit affirmed. The appellate court found the defendants’ actions “atrocious,” Scherr, 757 F.3d at 596, but it noted that the father-in-law might not have known that the plaintiff had discarded the plants when he made the affidavit. Disclosing his own involvement in the plaintiff’s activities would have “doomed the application,” but it would not have “undermined the existence of probable cause.” Id. at 597.

Since the plaintiff was never charged with an offense in connection with the search warrant, we cannot know for certain how a court might have viewed the father-in-law’s actions if the DEA agents had found marijuana. The Seventh Circuit noted that a tort claim for intentional infliction of emotional distress against the officers might have been successful, either in state court or as a supplemental jurisdiction claim in the federal lawsuit.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified criminal defense lawyer Michael J. Brown has spent more than two decades fighting for the rights of west Texas defendants charged with drug offenses in both state and federal courts. To schedule a confidential consultation to see how we can help you, contact us today online or at (432) 687-5157.

More Blog Posts:

Magistrate Could Find Probable Cause for Search Warrant, Texas Court Rules, Despite Presence of Unknowing Third Party During Controlled Drug Purchase, Texas Criminal Lawyer Blog, March 14, 2014
“Independent Source” Doctrine Allows State to Use Evidence Originally Discovered through an Unlawful Search, Texas Criminal Lawyer Blog, February 20, 2014

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