The odor of weed/marijuana wafting from a home gives police the warrantless-keys to a home.
This area of the law will continue to change – eventually with legalization of marijuana, officers will not be able to use the smell of marijuana as a basis for a search without a warrant. But until then…
In 2011, the United States Supreme Court rejected the argument that the police should not be able to create exigent circumstances by knocking on the door or making their presence known in order to avoid the general requirement that they obtain a search warrant before entering a home. Kentucky v. King, 131 S. Ct. 1849, 1859-62 (2011)(rejecting “police-created” exigency doctrine). If police have probable cause and a reasonable belief that evidence is being destroyed they are permitted to enter a home without a warrant and conduct a search, even though they have created the exigent circumstances.
There is no fixed legal definition that fully captures the meaning of exigent circumstances. Courts consider the commonalities for cases providing exigent circumstances mixed with practical commonsense judgment when determining whether officers in a myriad of situations with varied fact patterns face exigent circumstances excusing a warrant before conducting a search.
While there is a rebuttable presumption that a warrant is required by the Fourth Amendment prior to a search, in King, the court explained “[t]he ultimate touchstone of the Fourth Amendment is ‘reasonableness.'” Id. 131 S. Ct. at 1856. The Fourth Amendment’s text condemns only ‘unreasonable’ searches and seizures, and does not expressly require warrants. The rebuttable presumption can be overcome by judicially recognized reasonable exceptions.
The inquiry focuses on what an objective officer could reasonably believe. Courts have found exigent circumstances justifying a warrantless entry and search where the smell of marijuana wafting from a residence with the announced or obvious presence of the police would cause an officer to reasonably believe that a crime is underfoot and that the evidence (marijuana) would be destroyed if entry and search is not promptly made.
Each case is judged based upon its own unique facts. In Evans v. Commonwealth, 776 S.E.2d 760, 766, (2015), the Virginia Supreme Court found officers justified entering a home where the smell of marijuana wafted from the home and the occupant interacted three times with the police in circumstances that increased the probable cause and exigency. When the defendant’s mother opened the door, a cloud of heavy and extremely strong marijuana odors, some of which blew “like a gust of wind,” past police officers through the open doorway; then when the mother opened the door again in response to more knocking she suspiciously volunteered denial (“Ain’t nobody smoking weed in here”) and appeared nervous and shaking in the face of the obvious fact that police officers smelled marijuana odors blowing through the doorway and finally that she slammed the door in the face of police officers in response to their further inquiries with sounds of unspecified movement inside the apartment after the door was slammed shut and finally did not respond to the additional knocks on the door by the investigating officers.
Hull Street Law, a division of Thomas H. Roberts & Associates, PC provides criminal defense in Central Virginia. The law firm specializes in creative litigation and civil rights. The law firm frequently litigates issues related to the Fourth Amendment in criminal and civil courts.
Contact the law firm immediately if you have been charged with a crime and there is an issue related to whether or not the Fourth Amendment was violated.
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The materials are prepared for information purposes only. The materials are not legal advice. You should not act upon the information without seeking the advice of an attorney. Nothing herein creates an attorney-client relationship.