Search and Seizure: The Smell of a Burning Joint Does Not Justify a Warrantless Entry, US Fourth Circuit Holds

Police who entered an apartment after smelling marijuana being smoked there violated the Fourth Amendment's protections against unreasonable searches and seizures, the 4th US Circuit Court of Appeals held in a late January ruling. Evidence found during a subsequent search with a search warrant based on that illegal entry must also be thrown out, the court held.

The decision came in US v. Mowatt, in which Bladensburg, Maryland, police showed up at the door of Karim Mowatt's 10th floor apartment to investigate a noise complaint. They smelled marijuana and demanded they be allowed to enter the apartment, but Mowatt refused, repeatedly asking if they had a search warrant. Police then claimed they feared Mowatt had a weapon, forced their way in, and found guns and drugs. Police then used the evidence they found at the apartment to get a search warrant to further search the apartment. Based on contraband found there, Mowatt was charged with various drug and gun offenses.

Before trial, the trial judge denied Mowatt's motions to suppress the evidence, buying prosecutors' contentions that the warrantless entry was lawful because "the risk of destruction of the evidence of marijuana possession constituted exigent circumstances." Mowatt was found guilty in May 2006 and sentenced to a total of 16 years and 5 months.

The 4th Circuit disagreed, noting it was only the arrival of the officers at the door that created any exigent circumstances. "[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 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."

US Attorney Rod Rosenstein, who argued the case, wasn't happy, he told the Maryland Daily Record. "The implications of this opinion are very broad for what police officers should do in this situation -- which isn't an uncommon one," he said. He added that he is working with the Justice Department to decide whether to appeal the decision.