Milam v. Commonwealth – Unlawful Entry by Officers

Police officers may not enter one’s dwelling, absent consent by owner or a warrant, except in the most extreme circumstances. Such a case might involve the reasonable belief that someone inside is in danger.
Beyond that, any evidence collected as a result of unlawful entry – no matter how powerful – may not be used against a defendant in a court of law.

This point was underscored yet again in the recent case of Milam v. Commonwealth, wherein officers entered a fraternity house connected to a Kentucky university without a warrant.

According to court records, defendant was a member of a fraternity at Kentucky University, and he leased a room located near campus. The house was owned by the fraternity.

A detective for the university’s police department received a tip indicating defendant was illegally selling marijuana at the house. The detective, and two others, went to the home to perform what’s known as a “knock-and-talk.” Detectives did not have a warrant.

There is no law against officers knocking on a door and speaking with residents and even asking for permission to enter. But absent a warrant or consent, they cannot enter the residence.

Officers knocked on the back door, mistakenly believing it was the front. They knocked and rang the bell several times, but no one answered. Determining amongst them that a fraternity house was more akin to an apartment complex than a private residence, the detectives opened the door and went inside. The door was unlocked and slightly ajar.

They crossed into the foyer, remained there briefly and announced their presence. Soon after, detectives came across a resident and, without asking who he was or whether he was a fraternity affiliate, told him they were looking for defendant. Detectives then followed that resident to defendant’s room.

The trial court later ruled this was implied consent by a third party.

When detectives reached the top floor, they smelled burnt marijuana. The resident they followed opened the door to the second floor and pointed detectives to defendant’s room. Detectives knocked. Defendant opened, and detectives noted a strong smell of marijuana. On the coffee table in plain view was a jar full of marijuana.

At that point, defendant granted detectives consent to search the room. They discovered more marijuana, pills, drug paraphernalia, thousands in cash and a phony driver’s license.

He was arrested on drug charges, including trafficking a controlled substance within 1,000 yards of a school, possession of a controlled substance, possession of drug paraphernalia and criminal possession of a forged instrument.

Defendant argued detectives had no right to enter or search the home in the first place. Numerous suppression hearings were held, but trial court ultimately denied all requests by defendant to suppress that evidence. Defendant later pleaded guilty, on the condition he reserved his right to appeal on the denial of the suppression motion. He received one year in prison and three years probation.

The appeals court affirmed, but the state supreme court reversed – vacating defendant’s conviction and sentence.

The court considered the basic legal question of whether a frat house is a private residence or an apartment building/hotel, in consideration with the Fourth Amendment. While officers would have been allowed to enter the common areas of a hotel or apartment building without consent or a warrant, the same is not true of a private residence.

Ultimately, court ruled fraternity houses are indeed private residences, and thus officers had no right to enter in the first place and all evidence obtained thereafter was inadmissible in court.

Call Fort Lauderdale Criminal Defense Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:
Milam v. Commonwealth, May 14, 2015, Kentucky Supreme Court
More Blog Entries:
Coffey v. Shiomoto – Rising Alcohol Content in DUI Case, April 29, 2015, Fort Lauderdale Arrest Lawyer Blog

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