Fairly recently in State v. Duran, the Utah Supreme Court ruled that police officers who smelled the odor of burning marijuana coming from a residence were not justified in searching the residence under and “evidence-destruction” part of the “exigent-circumstances” exception to warrant requirement. In other words, sometimes that police can enter a home without a warrant, if it is an emergency, such as when the police reasonable believe that suspects of a crime are about to destroy evidence. The court said smelling burning marijuana was no such emergency.
Here are the facts that the court gave:
“On April 22, 2003, the brother and the mother of Lance Horvath called police officers to report that people were smoking marijuana inside Mr. Horvath’s trailer, which was located on his mother’s property. When officers arrived about forty minutes later, the brother reported that he had personally observed people in the trailer smoking marijuana and warned that, although Mr. Horvath was away at the time, he kept guns in his trailer and had threatened to use them against the police.
“The police officers later testified that as they approached the trailer, they could smell the faint but unmistakable odor of “marijuana leakin’ out of the cracks of the trailer.” Concluding that time was of the essence because the occupants were “in the very process of smokin’ up the evidence,” the officers entered the trailer without first obtaining a warrant. Inside the trailer, the officers found controlled substances, several firearms, and three individuals, including the defendant, Bernadette Duran.
At trial, the court denied Ms. Duran’s motion to suppress the evidence found in the warrantless search. The court of appeals reversed, holding that although the odor of marijuana to which the officers testified gave rise to probable cause for a search, it did not create exigent circumstances that would justify their warrantless search of the trailer.”
The Utah Supreme Court said:
“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 before a lawful search can occur. The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their … houses … against unreasonable searches and seizures.” As the United States Supreme Court has stated, “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).
“Accordingly, “searches and seizures inside a home without a warrant are presumptively unreasonable,” even when officers have probable cause to search. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).”
State v. Duran, 2007 UT 23, 156 P.3d 795, 797
By Greg Smith, esq.