Season two of AMC’s hit TV show “Better Call Saul” kicked off last night much to my relief. While the episode, titled “Switch,” did not have any mega-moments where Jimmy McGill faced a difficult ethical dilemma in the court room, this episode does provide me with the opportunity to write about a particular subset of searches conducted by police officers called “consent searches.”
If you have been following Better Call Saul, you will be familiar with a dweeby-looking-and-sounding wannabe tough guy drug deal who goes by the name “Pryce.” Pryce works for a medical company and somehow came into possessing some high quality drugs that he decides to sell to Nacho, the intelligent, ambitious member of Tuco’s gang. Nacho could be described as the “man of reason” in Tuco’s gang. In either episode 2 or 3 of season one of Better Call Saul, Nacho visits Jimmy in his cramped quarters to discuss some arrangements. During this conversation, Nacho remarks that he “loves stealing from criminals because they have no recourse.” Little did we know that Pryce would be one of his targets.
While I do not advise criminals on conduct they should take, it seems common sense that when a criminal is engaged in criminal activity, especially as a novice playing in a game that is way out of his or her league, it would be smart to go to every drug transaction, or business meeting, if you will, with protection. Pryce was smart because he hired Mike Ehrmentraut to be his muscle. Pryce, predictably underappreciated Mike’s literal and figurative vision. Pryce then goes out to a meeting behind a rundown factory with Nacho all alone in his audacious yellow hummer with spinners. Pryce ignorantly and persistently invites Nacho to go inside his hummer to “feel the leather.” Nacho, being the clever criminal he is, looks inside Pryce’s glove compartment, takes a quick glance at Pryce’s insurance, then completes the transaction with Pryce being none-the-wiser about the danger he just put himself into.
Pryce’s home is subsequently burglarized, and he makes the mistake of calling the police. The police arrive at Pryce’s disheveled home, and Pryce claims that the only property taken was part of his immaculate baseball card collection. When Pryce leaves the living room, the already suspicious officers noticed that it looked like the couch had been pulled out based on the perfect right angle of clean carpet. The officers, still with Pryce being absent move the couch and effortlessly remove the molding the part of the wall the connects to the floor and see something, we just don’t know what.
Let’s assume the police found a stash of Xanax packed not in prescription bottles, but in cardboard boxes. Let’s go one step further and jump to the conclusion that the police confiscate the drugs and use it as evidence against Pryce in a felony Possession of Controlled Substances case. The question now is can the police use the drugs against you? Can the police seize evidence when you invite them into your house to investigate a crime, or for any matter? Could a criminal defense attorney do anything to keep the drugs from being used against you? What rights do I have when I invite the police in my house? Was what the police did considered a search? Didn’t the search invade Pryce’s expectation of privacy?
Well, if you asked even one of these questions, you are on the right track. The police can enter a person’s house for any variety of reasons. The good news is that a search that was conducted without a warrant, also known as a “warrantless search,” is presumed to be illegal. As a criminal defense attorney who enjoys handling drug cases, and has done so with great success, I love warrantless searches. I love warrantless searches because once I file my motion to suppress, which as of the date of writing this article I have never lost, and I say that this was a warrantless search, it puts the onus – the duty – on the government prove that there was a legally recognized justification for the search.
So, can the police use the drugs against Pryce under the circumstances he finds himself in? I say no, which is why I would file a motion to suppress the drugs to keep the Xanax from being used against him. Here we have Pryce calling the police to report a burglary. The police arrive and immediately see that the Pryce’s living room has been destroyed. Almost as fast, the police suspect something suspicious after Pryce opens his mouth.
Whatever you allow the police to do. That’s right. When you invite the police into your house, you have the right to limit the scope of their intrusion. You can limit the police to a specific area of the area. You can limit the police to certain conduct. In other words, you can tell the police you only want to give a statement, or limit their ability to search. You can also revoke the permission you have the officers to enter you house. In theory, you can revoke your permission at any time. In reality, the police are likely going to continue their search once they think they have probable cause to search. Generally, this scenario occurs when someone calls the police, or the police knock on your door without a warrant and ask for permission to come inside. Once the police are inside, you can always revoke your consent and ask the police to leave. If the police don’t leave, you have a suppression issue.
Reflecting on Pryce and Better Call Saul, I would recommend that anyone in Pryce’s position should always be in the presence of the officers when they are in your house. Officers are nosy. They are going to do things they shouldn’t do, and the Texas courts are generally going to let that conduct fly unless you told the police otherwise. I think Bryce also should have told the police in clearer terms that he only wanted to make statement. As you can see from this episode, it doesn’t help to act and sound erratic.
Ultimately, what the police did in this episode of Better Call Saul was an illegal warrantless search. There are several exceptions to the warrant requirement, but they are not easy to satisfy. I imagine the government would argue “plain view” as an exception to the search warrant requirement. But you, as a sensible human being know that if officers have to move a couch, crouch down, remove a plank of wood from a wall, turn on a flashlight, and cock their heads that there was nothing in plain view.
So how else could the officers have legally searched Pryce’s house? They could have gotten a search warrant. Well, they could have tried at least. In order to get a search warrant the police would have to go to a judge or magistrate after writing a search warrant application and search warrant. The application would have facts that lead the officers to have probable cause to believe that a crime was being committed and that they would find particular evidence to a particular type of crime in the place to be searched. Here, the officers could never satisfy the probable cause standard. The cops had a hunch, but a hunch is not enough to justify a search.
To go one step further, in order to justify a warrantless search, the officers would have had to establish that they had probable cause to search Pryce’s house AND that an exigent circumstance justified their failure to seek a search warrant. These exigent circumstances include, but are not limited to, preventing the destruction of evidence the police reasonably believe will be destroyed and to preserve life when they reasonably believe their action will prevent loss of life or serious injury.
Back in Better Call Saul world, I think that the cops found something, or will find something, as a result of their illegal search that they would not have otherwise found. I think that illegal search will end up being Jimmy McGill’s first big win as a “free world lawyer.”