Exigency Created by Pot Odor and Door Slam

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By Lance J. Rogers

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.

Imminent Destruction

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.

Applying that test here, the court found that the officers had ample reason to believe that evidence would be destroyed if they didn't enter the apartment.

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.

Unintentional Apophasis

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 lrogers@bna.com

To contact the editor responsible for this story: Tom P. Taylor at ttaylor@bna.com

Full text at http://www.bloomberglaw.com/public/document/Evans_v_Commonwealth_No_141206_2015_BL_300911_Va_Sept_17_2015_Cou.