According to the Utah Supreme Court, the faint smell of marijuana coming from behind closed doors is not evidence enough to grant police the right to undertake a warrantless search of private property. “We decline to grant the aroma of burning marijuana a place on an exclusive, limited roster of exceptions to the requirement that a warrant be secured for a lawful search can occur,” the court wrote in a March 9 decision.
Back in April 2003 Lance Horvath’s mother and brother called the cops to report that people were smoking pot in Horvath’s trailer, which was located on his mother’s property. When the cops arrived, the brother reported that he’d seen the tokers in action, and warned the cops that although Horvath wasn’t home right then, he knew his brother kept guns in the trailer and had threatened to use them against the cops. When the cops approached the trailer, they later said, they could smell the “faint but unmistakable” odor of “marijuana leakin’ out of the cracks of the trailer,” the Utah court recounted in its recent opinion. That led the cops to conclude that there simply wasn’t time to get a warrant for Horvath’s trailer since the folks inside were “in the very process of smokin’ up the evidence.” Inside the trailer, police found both pot and guns, and three people, including Bernadette Duran. At her trial, Duran argued that the evidence cops obtained during the search should be tossed out since the police had entered the trailer illegally. The trial court disagreed, but the appeals court reversed that decision, opining that the odor of marijuana might’ve given the cops “probable cause for a search, [but] it did not create exigent circumstances that would justify their warrantless search of the trailer.” The state appealed that decision, but the Utah Supremes sided with the appellate court, in favor of Duran’s claim of unlawful search.
Although the courts have made exception to the Fourth Amendment’s ban on unlawful search and seizure in circumstances where the destruction of evidence is imminent, the court opined that in the case of the dope smokers inside Horvath’s trailer, “the mere possibility that evidence may be destroyed” was not enough to justify the police entering without a warrant. “[P]olice officers must have a reasonable belief that the destruction of evidence is sufficiently certain as to justify a warrantless entry based on exigent circumstances,” the court wrote. “We find, however, that the detectable odor of burning marijuana is inadequate, standing alone, to support such a reasonable belief,” the court continued. “The aroma of burning marijuana must be accompanied by some evidence that the suspects are disposing of the evidence, as opposed to casually consuming it, before law enforcement officials may be lawfully justified in claiming the benefit of the exigent circumstances exception.”
While it is true that individuals, fearing an imminent search by police, might resort to destruction of evidence – in the case of drugs, by ingestion, perhaps – in Duran’s case there was no such intent to destroy and thus, in part, no justification for entering the trailer without warrant. “It is…unlikely that a person in possession of contraband, like marijuana, would be so consumed by paranoia as to dispose of the contraband by ingestion, having no reason to suspect that law enforcement might be alerted to the illegal activities,” the court wrote. “In this case, Ms. Duran made no effort, hurried or otherwise, to dispose of her marijuana in order to prevent its discovery by law enforcement.” Indeed, until the cops busted through the door, she had no clue they were even around. (Uh, maybe because she’d been smoking pot?) “We…decline to sanction the warrantless search in this context because we fear that it would be difficult to leash warrantless searches in other contexts in which consumption and destruction of evidence merge,” the court wrote. “It is certainly not far-fetched to envision law enforcement officers exploiting the rationale that consumption of contraband is also evidence destruction to justify warrantless searches in other contexts.”
Amen to that.
This article appears in March 30 • 2007.