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.

Permission to Reprint: This article is licensed under a modified Creative Commons Attribution license.
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Sniff...

I smell a return of the 4th ammendment. Smells sweet. There's still nothing "reasonable" about a hellicopter flying 20 feet over your home.

Heh

All we need are RPGS and ak's. I mean if they really want to search lets give them something to come in on, a hail of bullets.

It pissed me off when a stupid helicopter was hover over our garden and my father was standing out there with TOMATO plants flipping them off.

They are such scumbags they want to raid an innocent persons house and now they're trying to jail said person for NO CRIME unto another?

This right here is ABSOLUTE BS and if anything the COPS should be thrown in jail for violating civil rights.

Give 'em 50 years. Let the toker free!

YOU WOULD GET A HAIL RIGHT

YOU WOULD GET A HAIL RIGHT BACK YOU IGNORANT f#$C. AND HOPEFULLY YOU DIE A HORRIBLE DEATH IN THE NEAR FUTURE.

you are all stupid!

you are all stupid!

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dean loves dick

Guess what? None of this

Guess what? None of this matters. The cops will testify in court that you let them in even if they pulled you out of your house the second you open the door.

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