In U.S. v. Delancy, No. 06-13718 (Oct. 3, 2007), the Court held that the district court properly denied a motion to suppress evidence seized from the home of a defendant’s girlfriend’s home, because even assuming the initial "protective sweep" of the home was illegal, the subsequent search was consensual.
Police entered the home of Delancy’s girlfriend, weapons drawn, because he was known as dangerous person. Once inside the home, the police conducted a protective sweep. The police then asked the girlfriend for her written consent to the search, which she gave. The search yielded drugs and weapons.
The Court recognized that the legality of the protective sweep raised a "difficult question," because the police entered a home without a warrant, and without probable cause. However, even assuming the search was unlawful, no Fourth Amendment violation occurred because the owner of the home then consented, in writing, to a search of her home.
The Court noted that the items found during the consensual search were not suppressable as "fruits of the poisonous tree," that is, as a product of the initial protective sweep that the Court assumed was unlawful.
The Court noted that three factors determine whether the consent was tainted: the "temporal proximity" of the unlawful search and the consent, the presence of "intervening circumstances," and the flagrancy of the official misconduct.
The Court recognized that a short time elapsed before consent was given, but noted that the police did not threaten the consenter, making timing a less important factor.
Second, the Court spotted "an important intervening circumstance," namely the review of the consent form, which informed the girlfriend of her constitutional rights and of her right to refuse consent. This consent form was relevant not to show the consent was voluntary – a separate issue – but to show that the consent was "sufficiently independent" of the original unlawful search.
Third, the Court found no "flagrancy" in the government’s conduct, finding that the police were genuinely concerned for their safety.
Thus, on the whole, the consent was not tainted.
Finally, the Court noted that drugs found during the (illegal) protective sweep did not need to be suppressed under the "inevitable discovery doctrine," that is, the drugs would have been found during the consensual search, "inevitably."
