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Media > Newsletters > Law Enforcement Bulletin > April 2015 > Search & Seizure (Preemptive Seizure of Property Without Search Warrant): State of Ohio v. Welch

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Search & Seizure (Preemptive Seizure of Property Without Search Warrant): State of Ohio v. Welch

Question:  Can you seize property that may contain evidence without a warrant if you fear it will be destroyed or discarded?
Quick Answer: Yes. If you reasonably believe the property may be destroyed, you may preemptively seize the property.
State of Ohio v. Welch, Ninth District Court of Appeals, Summit County, Jan. 28, 2015
Facts: Police received a report that a 12-year-old girl had been sexually assaulted. The victim told police that she thought she had been drugged, had her clothing removed, and that Corey Welch had taken pictures of her undressed. Welch had lived with the victim and her mother for about one week. One of the officers spoke to a detective on the phone and told him about possible pictures on the phone. The detective told the officer to take Welch’s phone. The officer did not access the phone.  Welch was taken to the police station for questioning and was later arrested. The victim’s mother placed Welch’s personal items into a duffle bag and told officers she was going to throw them away. Officers went to the home and collected the bag; they did not open it. The next day, the officers secured a warrant for both the phone and duffle bag. Welch moved to suppress the evidence recovered from the phone and duffel bag because the items were taken without a warrant.
Importance: Sometimes there isn’t time to obtain a warrant to seize property or evidence that might get destroyed. The officers in this case properly seized the phone and duffel bag due to their fear of destruction of evidence. The court found that to be reasonable. In particular, the phone was directly linked to the alleged crime and in possession of the suspect. And, the duffel bag was going to be thrown out or discarded by the mother. The most important thing that occurred in this case was that the officers obtained a warrant, in a reasonable time period after seizure, before accessing the evidence. It may have been a different ruling by the court if the property had been searched prior to obtaining the warrant. Remember, you are allowed to preserve the evidence. However, once preserved, you should get a warrant before you search.
Keep in mind: Welch argued that there were no “exigent circumstances” for seizing the duffel bag. He argued that the mother was told not to throw the bag away and that ended any concern about destruction. Looking at the situation as a whole, just telling the mother to not destroy or discard the evidence in this situation was not enough to ensure the evidence would not be compromised.
More on Search & Seizure
Bad traffic stop = no warrantless entry of residence. You receive information from a confidential informant that two suspects are at a residence cooking crack cocaine and will soon be leaving. You head over to the location for surveillance. The suspects leave and are later pulled over on a traffic stop for obstructed tags. This stop was suppressed in the criminal case because of an impermissible delay involving a K-9 unit. After the arrest, you go back to the home and knock on the door. No one answers, but you hear people inside running water and then someone says, “It’s the police.” Concerned evidence is being destroyed, you force your way into the home. Inside a woman is shoving suspected crack cocaine down the kitchen sink with a butter knife. You order her to stop, which she does, and then ask to search the home. She says no. A warrant is then obtained to search the home. Was your warrantless entry justified? The court in Bradley said no. This entire case hinges on whether the initial traffic stop was proper, because without that there was no probable cause to go back to the house—meaning you had no drugs to tie back to the house. Because law enforcement improperly detained the suspects at the scene to wait for the canine unit, all evidence obtained there and after was tainted by that initial constitutional violation. State of Ohio v. Bradley, Sixth Appellate District, Erie County, Jan. 30, 2015. See also, State of Ohio v. Young, Sixth Appellate District, Erie County, Jan. 30, 2015.
Adjoining Crawlspaces and Plain View: Your department received a tip that a shipment of marijuana was expected from Los Angeles into your jurisdiction. One package was identified at the post office and after a warrant was secured, marijuana was discovered inside. A controlled delivery was made to the address and an anticipatory search warrant was executed when the alarm, indicating the package was opened, went off. The suspect was apprehended and arrested. A search warrant was then obtained for the suspect’s residence. The warrant was executed and more than 200 pounds of marijuana was found—most in a crawlspace in the basement. Upon further investigation, you notice the crawlspace is connected to the adjoining duplex through a partially covered hole. From the suspect’s side of the crawlspace you can clearly see more marijuana in the neighbor’s crawlspace. You obtain a search warrant for the adjoining duplex and discover more marijuana. Were you allowed to look through the hole into the neighboring apartment under the authority of the first search warrant? The court in Perry said yes. The Fourth Amendment does not require law enforcement to disregard evidence readily visible, as it was through the crawlspace. Looking through the crawlspace was not a search but gave probable cause for a search. The search took place after the warrant was properly obtained and executed. State v. Perry, Fifth Appellate District, Richland County, Mar. 2, 2015.