I have written previous blogs on search warrants and the requirements for warrants but right now I want to focus on a person’s physical location within a home or business during the execution of a search warrant. When police enter a home or a business they will, at the very least, detain everyone within the property prior to searching it. This is permissible and known as a protective sweep. Its purpose is to ensure the officers safety during a search.
In most situations the item or items in question is some type of contraband such as drugs, guns, or other evidence of a crime. Given the size of these items police are permitted to look practically anywhere within a home or a business. The police search would include drawers, cabinets, the closets, underneath or inside furniture, and even beneath floor boards. A person’s presence or location at the time the police execute the warrant is sometimes helpful to a defense in these cases.
If the illegal gun or drug is found downstairs and the suspect is upstairs or in a different room downstairs for instance, it may be easier for the defense to argue a lack of constructive possession or control of the item. I encourage you to read my other articles on constructive possession to understand this concept. A person’s distance from the illegal item (drug, guns, etc) will be especially helpful if there are other people living within the house and the item is found, for instance, in another person’s bedroom or even in a common area such as the kitchen or the garage. Common area access, however, isn’t as strong of a defense as an item found in another person’s bedroom or in another person’s personal belongings (i.e.: closed trunk, backpack, bag, etc).
Police may also look for any identification in the area where the item is found to link the item with the suspect. A person’s distance from the illegal item can form the foundation from establishing reasonable doubt especially if the prosecution can’t present any evidence with regards to observed transaction or other circumstantial evidence linking the suspect to a crime such as a large quantity of money or drug paraphernalia (baggies, razor blades, scales).
A distance defense is obviously not helpful if you are the sole owner of a property but it is effective in situations where multiple people live in the house and have common access to all of the areas within the property. While the prosecution can still meet its burden of guilt beyond a reasonable doubt with circumstantial evidence, a person’s distance from the contraband combined with a lack of corroborating evidence can create issues for the prosecution which could lead to an acquittal. If you have more questions about criminal defense strategies I encourage you to read my books, subscribe to my newsletter, and watch my videos.