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Deputies' ruse fails to hold up in court

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Deputies' ruse fails to hold up in court

SEARCH RULING: Police can't use child welfare inquiry as a trick to enter a home

By Todd Ruger

 

 

SARASOTA COUNTY - Two detectives suspected a couple were growing marijuana in a home, but there was not enough evidence to get a search warrant.

 

So they came up with another plan after learning the couple had a child.

 

The Sarasota County sheriff's detectives went to the home and claimed to be with the Florida Department of Children and Families, and said they wanted to go into home to check out an anonymous tip about their child's safety.

 

The couple let the detectives in, and eventually they found 36 marijuana plants and drug paraphernalia.

 

But a judge who heard about the ruse last week threw out of court all the evidence the deputies found inside Matthew Kennedy's home.

 

The felony cultivation of cannabis charge against Kennedy, 29, is still pending, but the ruling cripples the case and underscores how the law protects homes from warrantless police searches.

 

Prosecutors argued that Kennedy gave consent to the deputies to search his home, and even had the deputies wait outside for five minutes so he could "tidy up" his home in the 3200 block of Williamsburg Street.

 

Law enforcement officers are allowed to use some deception to get a homeowner to agree to a search of their home. But without a warrant, the state must show that any search was based on the homeowner's voluntary consent to the search.

 

Circuit Judge Deno Economou ruled that the deputies told Kennedy they had the legal authority to enter his home, so Kennedy was not in a position to voluntarily consent.

 

Pretending to be from DCF takes deception to a whole new level because it preys on a parent's worst fear of having their child taken from them, defense attorney Liane McCurry said.

 

"Is there any greater issue?" McCurry said. "To use that is horrifying."

 

In July, the deputies told Matthew Kennedy and Kristen Stoltzfus that they were there for DCF to check on an anonymous tip about a 12-year-old child living in unfit conditions, court records state.

 

But there was never a tip about that, and at no time were they acting with DCF. The couple have only a 9-year-old daughter, and they said she was at a friend's house.

 

Kennedy asked them to wait before coming in so he could put the family dog in a contained area, McCurry said in court records.

 

Once inside the house, the detectives could immediately smell an odor consistent with a marijuana grow operation, noting a stronger smell in the kitchen.

 

The detectives eventually got a search warrant and later found the marijuana plants.

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UPDATE IN TODAYS PAPER

 

Why deputies' DCF lie deserved to be tossed

 

By Tom Lyons

 

 

Law enforcement administrators should note the court ruling that says a lie Sarasota County sheriff's investigators told to get into a house, without a warrant, violated the residents' rights.

 

I hope most also see that Circuit Judge Deno Economou was right to throw out the evidence that search revealed.

 

Sheriff's investigators on that case suspected a couple were growing marijuana at their home, but had no evidence to justify seeking a search warrant. So, instead, they gained entry by tricking the residents with a lie.

 

And not just any lie. Claiming to be working with the Department of Children and Families, they said they were there to check on the welfare of a child.

 

That was entirely made up. The couple has a daughter, but there was no report of neglect or abuse of any kind on her or any other child.

 

I'll admit I've enjoyed some almost legendary police ruses, including a creative one, based on fact, portrayed in "Sea of Love." In that movie, New York detectives make numerous felony warrant arrests, conveniently, after convincing targeted arrestees that they are being specially invited to a Yankees "fan appreciation" breakfast. Al Pacino was great at pretending to be baseball broadcaster and former player Phil Rizzuto.

 

Far more serious are lies designed to make a criminal suspect think his accomplices are about to spill the beans, leading him to confess first in hopes of getting the best deal. I have no objection to that, either.

 

But the DCF lie? That's creepy, and wrong.

 

What parent wouldn't have qualms saying no to law officers with child welfare concerns? Even if parents thought they had a choice, saying no to a child protection team wanting in is an almost sure way to convince them they were dealing with an unfit parent.

 

Allowing officers to impersonate child welfare agents would mean they would almost never need evidence of wrongdoing to search any home where parents live. Unless parents want to risk losing their kids, they'd almost have to give up a basic constitutional right.

 

Real DCF investigators should object to that scam most of all, because they want parents to trust and allow them in. A DCF spokesman, Alan Abramowitz, didn't want to criticize any law officers, but did say his agency has worked hard in recent years toward a more family friendly image. The intent is building trust through more cooperation with parents, when possible.

 

The last thing DCF needs, I'd say, is for parents to wonder if child welfare workers are actually lying cops running a scam.

 

No law officer should have trouble understanding the harm that does. It is the same harm done by creeps who impersonate cops and so undermine real law officers by creating public doubts about who is and isn't real.

 

Sheriff Tom Knight acknowledged Wednesday that the court ruling makes sense. Knight said deputies have been told not to use the ruse again.

 

That's good. Pretending to be with DCF was not a clever or cute trick. It was destructive fraud that violated rights.

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