For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...
Sept. 23 — Officers who executed a knock-and-talk after smelling marijuana didn't violate the Fourth Amendment when they entered the apartment after an occupant denied that her son was “smoking weed,” slammed the door and then delayed re-opening the door when the officers knocked again, a divided Virginia Supreme Court ruled Sept. 17.
In an opinion by Justice D. Arthur Kelsey, the court said the warrantless entry was justified by the exigent-circumstances exception to the warrant requirement because the officers had a reasonable belief that marijuana would be destroyed if they waited for a search warrant.
The court found persuasive knock-and-talk precedent from the Fourth Circuit holding that exigent circumstances exist when it is “obvious” to the occupants that the police knocking on the door know about the marijuana and it is “equally obvious” to the police that the moment the door is closed, those in the room will try to get rid of any illegal drugs.
The test isn't whether the police can produce concrete proof that the occupants were on the verge of destroying evidence, the court said. Instead, the proper inquiry “focuses on what an objective officer could reasonably believe,” it said.
In this case, two facts establish exigent circumstances prior to the officers’ entry into the apartment: first, the cloud of heavy and extremely strong marijuana odors, some of which blew through the open doorway “like a gust of wind,” and, second, the contemporaneous knowledge of Evans’ mother that the investigating officers at her doorway smelled the marijuana, which would naturally give her a potent incentive to destroy, discard, or hide the illegal drug (or ask others to do so) soon after she closed the door.
It may have been that Tevin Gary Evans's mother slammed the door because she was simply tired of talking to the police, the court said. “But the more realistic hypothesis is that she was informing her son (who she later said had been smoking a marijuana blunt at the time) of the presence of the police at the front door,” it said.
If the officers had concocted the marijuana story, “slamming the door would have been an understandable nonverbal rebuke,” the court said.
However, because everyone could smell the “odiferous cloud of marijuana,” her exclamation, “ ‘Ain't nobody smoking weed in here,' was little more than an unintentional apophasis worthy of the Bard's retort: ‘The Lady doth protest too much, methinks,' ” it said, quoting Hamlet.
In a dissent joined by Justice S. Bernard Goodwyn and Senior Justice LeRoy F. Millette Jr., Justice William C. Mims argued that the majority gave police a green light to dispense with the constitutional requirement that they obtain a warrant before entering a private residence whenever they have “probable cause to suspect criminal activity, make contact with an occupant, and announce their suspicions before entering.”
Joseph Barry McCracken, Norfolk, Va., represented Evans. The Commonwealth Attorney's Office in Norfolk represented the state.
To contact the reporter on this story: Lance J. Rogers in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Tom P. Taylor at email@example.com
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)