Smell of burning marijuana not enough for warrantless apartment search
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Smell of burning marijuana not enough for warrantless apartment search
Police who entered an apartment after smelling marijuana coming from it violated the Fourth Amendment even though they later obtained a warrant to confiscate the drugs and other evidence used at trial, the 4th U.S. Circuit Court of Appeals has held.
The court vacated Karim L. Mowatt’s four convictions on drug and weapons charges and remanded the case back to the U.S. District Court in Greenbelt for further proceedings.
“[A]lthough the officers had every right to knock on Mowatt’s door to try to talk to him about the complaint … without a warrant, they could not require him to open it,” Judge William B. Traxler Jr. wrote.
The government maintained that the three Bladensburg police officers were faced with “exigent circumstances” and legitimately feared the evidence would be destroyed before a warrant could be obtained. But the three-judge panel found that the officers, who had been called to the building by a security guard, created the emergency by knocking on Karim L. Mowatt’s door and announcing a police presence.
The officers “needed only to seek a warrant before confronting the apartment’s occupants,” Traxler wrote. “By not doing so, they set up the wholly foreseeable risk that the occupants, upon being notified of the officers’ presence, would seek to destroy the evidence of their crimes.”
U.S. Attorney Rod J. Rosenstein said the “implications of this opinion are very broad for what police officers should do in this situation — which isn’t an uncommon one.”
Rosenstein said his office is evaluating the opinion and working with the U.S. Department of Justice to determine whether or not to request further review.
Security guard’s complaint
The incident occurred in November 2005 when officers were dispatched to investigate a report from the security guard that loud music and the smell of marijuana “were emanating from a tenth-floor apartment in a high crime area,” the opinion said. Once on the 10th floor, the officers identified the apartment by the noise and the smell of marijuana.
The officers knocked several times and heard an aerosol can discharging, which they later said made them suspicious that the occupant was attempting to hide the evidence, the opinion said.
They identified themselves as police and repeatedly insisted that Mowatt open the door. He refused,
but eventually opened it a few inches and “adamantly insisted” they leave if they didn’t have a warrant.
During this exchange, the officers told Mowatt to put his hands where they could see them. When he refused, they pushed their way into the apartment and handcuffed him.
A scuffle ensued; the refrigerator door was knocked open and the officers discovered “several hundred” pills suspected at the time to be the drug Ecstasy. It was at that point, the opinion said, the officers decided to call their supervisor and seek a warrant.
They recovered a revolver and two assault rifles with ammunition, a body armor vest, the bag of Ecstasy, substantial amounts of marijuana and $20,000 in cash. According to a footnote, the marijuana was later found “irrelevant” and excluded.
Before trial, U.S. District Judge Alexander Williams Jr. ruled the officers had probable cause to arrest Mowatt and that their presence in the apartment was lawful because “the risk of destruction of the evidence of marijuana possession constituted exigent circumstances,” the opinion said. Mowatt was found guilty in May 2006 and sentenced to a total of 16 years and 5 months.
At the appeal in December, the government also argued that the officers’ requiring Mowatt to open his door did not constitute a search and the evidence was admissible because it was seized with a warrant.
“We defended their conduct because it was reasonable under the circumstances they faced,” Rosenstein said. “Police officers need to react to countless varieties of circumstances. The general guidance they receive is to respect the Fourth Amendment and to act reasonably.”
Mowatt’s federal public defender, Paresh S. Patel, was unavailable for comment.
60-year-old precedent
In its decision, the 4th Circuit relied heavily on Johnson v. United States, a 1948 Supreme Court ruling that held officers had unlawfully forced their way into a hotel room after smelling opium outside the door.
When asked about the federal court’s reliance on a 60-year-old decision that centered on a hotel room versus an apartment in a high-crime area today, Carl Tobias, a University of Richmond constitutional law professor, said the court seemed bound by precedent — no matter how far back it had to reach.
“While it may seem a bit of a stretch, the courts are quite technical about search and seizure … maybe it was as close as you could get to this particular factual scenario,” he said.
08-02-2008, 19:31
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