If an off-duty officer at a party accidently finds something illegal and makes an immediate arrest, would the evidence be excluded from the court? Lets say that the evidence was six marijuana plants. The homeowner asks the off duty officer to get some ice from the basement; he cannot find the icemaker and opens a door and finds the marijuana plants.

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As a preface to the following answer pertaining to the admissibility in court of evidence of criminal conduct discovered by accident and without a warrant, police officers are never really “off duty.” Once sworn into office as law enforcement officials, police officers are always police officers. They carry badges while...

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As a preface to the following answer pertaining to the admissibility in court of evidence of criminal conduct discovered by accident and without a warrant, police officers are never really “off duty.” Once sworn into office as law enforcement officials, police officers are always police officers. They carry badges while ostensibly off duty, and even firearms precisely because they are sworn to enforce the laws irrespective of whether they are technically “on the clock.” Many police officers moonlight as armed security guards at public and private events because they are vested with the authority to make arrests while equipped with badges and firearms. They represent the law whether on duty or off.

Cases involving the Fourth Amendment to the Constitution of the United States tend to be very complicated. Individuals seeking easy answers to questions pertaining the admissibility of evidence in criminal trials will invariably find themselves stuck in a morass of differing interpretations of the Fourth Amendment and of case law in general. The Fourth Amendment, part of the Bill of Rights, directly addresses the issue of protection for individuals from a highly-intrusive government. The text is as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The wording of the Fourth Amendment would seem at first glance to dispel the notion that the marijuana plants specified in the student’s hypothetical scenario would be admissible in court. More than any other aspect or component of an individual’s existence, the home is considered virtually sacrosanct, inviolable by authorities acting without due cause as exemplified in a court-authorized warrant. As with other aspects of the Bill of Rights however, this supposition regarding the inviolability of one’s domicile is not absolute. There are limitations, and the issuance of a duly-authorized warrant for the search of private premises is a case in point. In the student’s scenario, there is no warrant involved, and there was a reasonable expectation of privacy on the part of the homeowner, but that does not mean that the marijuana plants would be inadmissible. The officer was asked by the homeowner to enter a specific part of the house to search for a specific item, ice. While searching for ice, with the consent of the homeowner, the officer discovers the marijuana plants by accident. The officer was authorized to be in the general vicinity of the presumably hidden plants but was not tasked with finding anything other than ice. It is virtually certain that the homeowner’s lawyer would move to have the evidence, the marijuana plants, ruled inadmissible under what is known as “the exclusionary rule,” which states that evidence discovered through an illegal search cannot be used as evidence. The officer’s search in this case was not illegal, but it is possible that the evidence would be ruled inadmissible anyway precisely because of the homeowner’s reasonable expectation of privacy.

Basically, there is no easy answer to this question. That is why there are appellate courts: Prosecutors can be overly zealous and judges make mistakes. The admissibility of evidence discovered by accident may hinge on interpretations of the Constitution and case law that differ depending upon on which side of the court one sits.

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The search was legal and there was no illegal or improper acts by the officer; therefore the marijuana plants discovered in the search would be admissible in court. The officer's status as off duty is of no consequence.

The issue turns on the fact that the officer was asked to retrieve ice from an ice maker and told where he would find it. The officer was acting in good faith and his discovery of the marijuana was apparently completely accidental. He had the consent of the occupant to enter that area of the premises, and thus was acting lawfully. Had the officer been snooping, or looked in an area where the ice maker could not be--say a tool chest--then the situation would be different. Under the present circumstances, however, the discovery of the marijuana plants was made while the officer was acting in good faith. Thus there are no grounds for exclusion.

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