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follow up to cops getting sued for warrantless search May 19, 2018

KEN KIRSCHENBAUM, ESQ
ALARM - SECURITY INDUSTRY LEGAL EMAIL NEWSLETTER / THE ALARM EXCHANGE
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follow up to cops getting sued for warrantless search
May 19, 2018
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follow up to cops getting sued for warrantless search from May 14, 2018 article
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Ken
    Interesting case however I would argue that when the officers by training and experience determined they had probable cause to believe a burglary had been committed were justified to enter the house FOR THE SAFETY AND PROTECTION OF ANYONE IN THE HOUSE. When they determined there were no VICTIMS in the house the exigency ends.
    In checking the house for victims the officer were allowed to OBSERVE ONLY any signs of OTHER criminal activity. If they did observed drugs etc they were then required to obtain a search and seizure warrant based on the probable cause developed during the exigent search for the SAFETY OF OCCUPANTS.
    In applying for the search warrant the officers merely had to show enough probable cause to make a reasonable person believe there was evidence of a crime.
1- WE WERE THERE LEGALLY searching for victims.
2- While there legally we saw evidence of criminal activity not related to the reason we were called to the scene.
3 On discovering criminal activity we:
    Immediately vacated the premises and posted a watch to assure that NOBODY ENTERED OR LEFT THE SCENE UNTIL WE COULD GET A WARRANT.
    Last question IS THE CENTRAL STATION LIABLE?
    I would argue NOT because they only dispatched the police on an ALARM ACTIVATED and did not add anything about perpetrators entering or attempting to enter.  The  information about the suspects was developed by the police on arrival?
    In searching for victims the officers were not allowed to open drawers however closets and areas where victims of criminal activity may be located are open territory.....
    The officers can only charge the suspects for crimes for which they have all the elements present.  Money and drugs in the home cannnot prove intent. It would go towards establishing motive, (weakly) unless the police can show a connection between the residence and the suspects.  (IE:  They have bought drugs at this house in the past, etc...)
    I have been personally beaten up by defense attorneys in evidence suppression cases in my 26 years as a cop.  Some you WIN some you LOSE but you ALWAYS LEARN after each one.......
Joel Kent
FBN Security Co LLC
LT  WPD  RET.
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Response
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    First of all, thanks for contributing and adding your always invaluable comments.  Second, can you still get me a signed PBA card for when I visit Connecticut?  
    It might surprise you, but alarm companies have been held liable for dispatching false alarms when First Responders get injured. The injury needs to be outside the risk inherent in their job usually, but these cases do come up [I've done a few articles on them and they are posted on my website in the Articles page, if you care to find them].  There are no cases I can recall where there was an actual alarm condition, not a false alarm, and injuries suffered to First Responders or others as a result of the dispatch.        This has nothing to do with the case reported, just in case we are causing some confusion.  There was no alarm dispatch in the case, just casual observation when the cop drove by a house.  But there could just as easily have been an alarm triggered when the back door was opened.  
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
200 Garden City Plaza
Garden City, NY 11530
516 747 6700 x 301
ken@kirschenbaumesq.com
516 747 6700
www.KirschenbaumEsq.com