//JUDGE: CCSO "SECURITY SWEEP" UNJUSTIFIED, UNLAWFUL ENTRY

JUDGE: CCSO "SECURITY SWEEP" UNJUSTIFIED, UNLAWFUL ENTRY

By Terri Jo Neff

– Tip and detective’s suspicions about door opening insufficient to permit warrantless forced entry into Sierra Vista home
– Statements made by suspect, marijuana found in home, can’t be used in prosecution
BISBEE – A decision by three Cochise County Sheriff’s deputies to force their way into a house without a warrant in order to perform a security sweep has resulted in a court ruling that suppresses evidence of illegal drug activity seized from the home. A security sweep  – also called a protective sweep – is a tactic utilized by police when serving an arrest or search warrant whereby officers stealthily move from room to room to ensure no one is hiding who could pose a threat to officers.
TheNovember 10 ruling by judge Wallace Hoggattof the Cochise County Superior Court affirms that homeowner Michael Bennett of rural Sierra Vista had the right to refuse to allow deputies into his residence on April 18, 2014. Hoggatt also ruled the officers – detective Guy Hudson, sergeant Randy Wilson, and deputy Brando Reibscheid – were not justified in forcing their way into the home without a warrant.

Hudson, a detective with the sheriff’s narcotics enforcement team, testified that the deputies went to the Bennett home to perform a “knock and talk” in an attempt to gather information about drug activity.
After Bennett refused them entry, Hudson said the security sweep was performed in case “anyone was in the house who posed a threat to our safety” and to ensure “evidence wasn’t destroyed while we got a warrant.”
David Shapiro, Bennett’s attorney appointed by the Cochise County Legal Defender’s Office, filed a motion August 26 to “suppress all evidence gathered pursuant to and directly connected to the invasion of Mr. Bennett’s privacy and the illegal entry into his home.” Shapiro argued that Hudson knew “there was not probable cause for a search warrant so deputies tried to create probable cause” by entering Bennett’s house “under false pretenses.”
According to testimony,  once inside the home the deputies saw “jars and buckets” of marijuana scattered around the house, as well as drug paraphernalia. Hudson then left the scene to obtain a search warrant, basing his affidavit to judge pro tempore Leslie Sansone of the Sierra Vista Justice Court in large part on what deputies observed during the security sweep.  Bennett was arrested once the search warrant was executed and has been charged with 11 felony counts.
Shapiro’s motion argued that under the Fourth Amendment of the U.S. Constitution the police are required to obtain a search warrant before entering a private home except under certain emergency situations. Those situations – referred to as exigent circumstances – demand immediate action that does not allow time for police to first secure a warrant.
Hoggatt’s Decision and Order cited established case law, with the judge noting that when “the state attempts to justify a warrantless intrusion into a private home, the burden is on the state to show that exigent circumstances justified the intrusion.” He added that if officers rely solely on speculation then “a protective sweep is unreasonable.”
Hoggatt determined that “at no time on April 18, 2014 did law enforcement officers observe any specific conduct or condition indicating that they were in danger of violence from anyone at the residence.” Therefore, “there were no exigent circumstances justifying officers to enter into defendant’s home without a warrant or consent.”

Because the security sweep “was conducted in violation of the Fourth Amendment,” Hoggatt  ruled “the fruits of the protective sweep must be suppressed,” meaning none of the evidence seized in the subsequent search can be used against Bennett. The ruling also applies to statements Bennett during the protective sweep and after his arrest which “were the products of the illegal protective sweep and must be suppressed.”
The tip: some guy named Stefan
On April 17, 2014 deputy Hudson received a tip from a man arrested during a traffic stop in Bisbee that there “were containers of marijuana” in a house where someone named Stefan lived in the Hereford area. The tipster, who Hudson testified was previously unknown to local police, did not know Stefan’s last name or the address but he described how to get to the house.
At the front door Michael Bennett, age 52, confirmed having a son Stefan – at the time in Colorado.  Hudson testified he has been an undercover detective for the narcotics team for 3 ½ years, and that the tip about Stefan was “new information” and that the Bennett home was “not on our radar” until the traffic stop. He also testified that the marijuana found in the house was “higher quality” than what was normally seen in the area.
Shapiro questioned Hudson’s knock and talk decision, pointing out that the detective told Bennett at the front door that deputies already had sufficient probable cause to obtain a search warrant. If Hudson was truthful, contended Shapiro, deputies would have shown up with a “warrant in hand, not stop by for a chat first.” At one point, Shapiro asserted that Hudson’s testimony about heightened officer safety concerns was “an elaboration and enhancement” of answers Hudson provided when previously questioned about why deputies entered Bennett’s home.
Judge Hoggatt noted in his ruling that deputies have justifiable concerns about their safety because “people who engage in illegal sales of high-grade marijuana want to avoid capture and safeguard their merchandise.” However, he found the information obtained from the tipster did not mention weapons or violent behavior or that anyone at the house “posed any kind of threat to law enforcement.”

Shapiro also disputed Hudson’s assertion that someone in the house could have destroyed evidence while a search warrant was being obtained. Shapiro noted that it was the deputies’ presence at the Bennett property that “created the potential for destruction of evidence” because up to that point, the unknown Stefan “was not aware the police were interested in his activities” so he had “no reason to destroy anything.”
Detective Hudson depicted Bennett’s behavior during the knock and talk as “suspicious” in part because Bennett “opened the door just enough to get his body out” indicating to Hudson there was something he “didn’t want us to see.”  But judge Hoggatt noted there may have been “innocent reasons defendant didn’t want to open his door wide enough to let officers look inside,” such as “defendant’s house was a mess or maybe defendant didn’t want his dog to get out.”
Three deputies, three different recollections
On April 2, 2015, nearly a year after his original arrest, Bennett was formally charged through the Sierra Vista Justice Court. By then he had left the area and did not return until April 2016. The lower court charges were dismissed on May 26 after the county grand jury indicted Bennett for possession of and production of marijuana, as well as possession of drug paraphernalia involving mason jars, 5-gallon buckets, a grinder, a scale, zip-style plastic bags, paper bags, soda bottles, growing lights and fans.
Deputy Reibscheid and sergeant Wilson were with Hudson at the Bennett property during the knock and talk and also took part in the security sweep and the execution of the search warrant. Although Wilson was ranking officer, he and Reibscheid testified at the suppression hearing that Hudson was in charge of the operation and their presence at the Bennett home was based on Hudson’s representation of facts.
During the suppression hearing Shapiro elicited discrepancies in the three deputies’ testimony concerning who did what, and when, and where each were positioned during the knock and talk. Each deputy also described somewhat different levels of safety concerns and worries about possible destruction of evidence. However, prosecutor Contreras noted that the incident took place 2 ½ years ago and that the deputies’ recollection of the major points in the case had not changed.
Search warrant not placed in evidence at hearing
Contreras also argued during the suppression hearing that even if there were problems with the security sweep or the search warrant, the deputies “acted in good faith in conducting the search.”  Therefore, contends Contreras,  a good faith exception would allow the evidence to still be used against Bennett.

However, Hoggatt noted in his order that he was unable to rule on whether deputies “relied in go

od faith on the warrant” becausethe prosecution never asked during the hearing for the search warrant documents be admitted as evidence .“The State has the burden of proving that the good faith exception applies,” wrote Hoggatt, adding that “the State cannot possibly meet its burden unless it presents the warrant and affidavit – so as to allow the court to consider the possibility” of a good faith exception.
Contreras may be ableto request the court’s permissionto admit the search warrant documents into evidence after the fact, which would allow Hoggatt to consider whether one of four good faith exceptions apply to the search warrant used in the Bennett case.
If Hoggatt’s suppression decision stands, the county attorney’s office will need to decide whether to appeal the ruling, dismiss the charges, or bring Bennett to trial later this year based on whatever evidence they had before the search. Hoggatt has scheduled a status conference for December 9.
When contacted about Hoggatt’s decision, Shapiro noted that everyone should pay attention to a case like Bennett’s. “Unconstitutional intrusion into the privacy of your residence is one of the worst kinds of government misconduct, a violation that we should all be concerned about.”
=======
Contact reporter Terri Jo Neff at 520-508-3660 and cjw_media@yahoo.com