Can police direct others to conduct a warrantless search?

Posted on by Steven W. Thayer, PS

On behalf of Steven W. Thayer, P.S. Criminal Defense Attorney on Saturday, February 16, 2019.

In the previous two posts, we discussed the intricacies of the constitutional protections that are guaranteed by the warrant requirement. A signed search warrant is not necessarily a final legal decision. In fact, the adversarial process of trial may be a vital safeguard if your criminal defense attorney has the skills to fully review the history of the investigation to find flaws in police procedures.

Members of law enforcement often use statements from individuals to gather evidence and support probable cause for a search. However, can police direct a civilian to conduct a warrantless search to gain probable cause for a warrant?

In State v. Orick, police claimed that two informants told members of law enforcement the first name of their alleged marijuana supplier. A detective showed one of the informants a photograph of a specific person and the informant identified the image as the alleged supplier. The detective found an address for the so-called supplier in real estate records and drove out to the home. He found a gated gravel driveway at the location, with two no trespassing signs. The detective could not see the home.

Police Took Steps To Delegate Police Duties To Civilian Workers

Members of law enforcement sought electricity records for the residence from the utility company. The records showed normal electrical use, although police were expecting higher than normal electrical consumption. The detective reached out to a supervisor at the utility company to determine whether power was being diverted. Two workers were dispatched to the residence to determine if electricity was being diverted to avoid the meter for use on the property without measurement.

The utility workers ignored the no trespassing signs and approached the home. A woman who also owned the home with the alleged supplier saw the workers coming and asked them what they were up to. They claimed that they were there to check on new equipment that was not working properly. They inspected the meter and found normal readings. The workers then checked the electrical flow at the transformer feeding the property and allegedly determined an abnormally high flow of electricity.

Police used that information to obtain a signed warrant for the property to search for evidence of marijuana production. During the search, members of law enforcement seized evidence of an alleged marijuana grow operation, leading to a felony charge alleging manufacturing marijuana.

Challenging The Validity Of The Flawed Warrant

In the trial court, criminal defense lawyer Steven W. Thayer challenged the validity of the warrant. He argued that the utility workers entered the property to conduct a search without a warrant, without probable cause to conduct a search, and without any recognized exception the to warrant requirement. In essence, the utility workers were acting as agents, or representatives, of the police — and therefore were bound by the constitutional prohibition against unreasonable searches and seizures found in the Fourth Amendment.

The trial court agreed, suppressed all evidence of the alleged marijuana grow and dismissed the charges. The state appealed and the Court of Appeals of Washington, Division Two affirmed the trial court’s ruling. In a general sense, the Fourth Amendment does not apply to utility workers who performing their normal duties. However, in this case, the utility workers entered the property at the express request of the detective. Their presence on the property was for the sole purpose of conducting a search at the request of law enforcement. The law does not allow police to sidestep constitutional protections by expressly sending in a proxy to conduct an evidentiary police search.

Flaws in warrant affidavits may come in a variety of forms, which we have discussed in previous posts. When prosecutors and police pursue criminal charges, it is important for people to understand that constitutional protections are not mere technicalities – they are principles of law that must not be violated. A criminal defense attorney serves to stand guard and ensure that constitutional principles are not eroded.

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