Puff, puff, give.1 Apparently everyone who smokes marihuana2 does it with friends. It reeks to high heaven, and the odor makes peace officers want to search everything from cars to baby dolls. I have smelled it in apartment complexes and coming from the car in front of me at a red light. The automobile exception to the warrant requirement allows the police to search a motor vehicle when the officer smells marihuana coming from the car.3 That is easy enough.
But when the potheads get together and start annoying the people in the apartments or houses around them, police are often called to the scene because of loud music or the odor of marihuana. This article is designed to help a prosecutor preparing for a suppression hearing in this scenario. The article gives a sample set of facts in police report style, then discusses likely suppression issues. I hope it will arm you with what you need to see that justice is done at these hearings.
The police report
“I, Officer Rock T. Ag, was on duty wearing my outstanding and fashionable standard police uniform and was dispatched to 123 Random Apartment after receiving a noise and odor of marihuana complaint. Upon arrival I smelled the odor of marihuana emanating from the apartment. I knocked on the door and announced myself as the police. I then heard shuffling inside the house and know that illegal drugs may be easily destroyed. I became suspicious of the noises and entered the apartment.
“Once inside, the odor of marihuana became suffocating to the point that I began to cough and get an acute case of the munchies. I noticed three people sitting around a table in plain view with a baggie of a green leafy substance that I recognized as marihuana based on my training and experience. Also on the table were a gas-mask bong; a 3-foot-tall, Chinese-style dragon; and a Teddy Ruxpin doll. The dragon and teddy bear were later discovered to be bongs as well.
“I did a protective sweep of the residence to ensure that no other subjects were present. Once the apartment was secured, I told everyone to sit on the couch. The defendants were Bob Marley, Snoop Dogg, and Willie Nelson. I asked them who owned the apartment. Bob said it was his apartment and the other two were just visiting. Snoop requested a lawyer, and Willie said he was smoking earlier tonight but that the weed belonged to Bob. Bob said he didn’t know who owned the weed. I arrested all three of them and placed them in handcuffs double-locked.”
At the front door
The first issue defense counsel may try to argue is that the police had no right to contact the subjects in the first place. In a dispatching for loud music and marihuana, police have the right to show up and knock on the door.
The police received an anonymous tip. Normally police officers have to corroborate an anonymous tip with the officer’s own observations,4 but police may approach a house or any area open to the public in the same way any other individual may.5 However, if officers want to search a house, they need a reason to enter. The Fourth Amendment analysis starts when the police move past the front door.
Searches and seizures inside a home without a warrant are “presumptively unreasonable.”6 However, sometimes “the exigencies of the situation make the needs of law enforcement so compelling that [a] warrantless search is objectively reasonable. …”7 So, you always need a warrant—unless you don’t. Thanks for being so clear, Supreme Court.
Here is what an officer really needs to search a home without a warrant: probable cause and exigent circumstances.8 The smell of marihuana is probable cause, and there are three types of exigent circumstances:
• emergency aid: assisting someone inside the home whom he believes to be in danger;9
• hot pursuit: chasing a fleeing suspect who runs into a home;10
• preventing destruction of evidence: stopping suspects from flushing drugs down the toilet.11
This article focuses on preventing the destruction of evidence. Defense lawyers argue that the police shouldn’t be able to enter a home just because they smelled marihuana and heard the defendant trying to destroy it. They argue that police themselves create the exigent circumstances and therefore shouldn’t be allowed to enter. As a prosecutor, this makes sense, right? Because obviously people are going to destroy evidence once the police arrive. After all, they’re on drugs. The police should be allowed to break down the door only if they accidentally catch someone burning bodies in the fireplace. In 2011, the Supreme Court decided Kentucky v. King and flushed these arguments down the proverbial toilet.
Kentucky v. King
Kentucky v. King held that police may enter a home without a warrant when defendants attempt to destroy evidence so long as up to that point the police had not violated or threatened to violate the Fourth Amendment.12 Made simpler, who cares if the police created the circumstances? They hadn’t done anything wrong up to that point, and we’re not going to let defendants flush all their drugs away.
In King, Kentucky police officers set up a controlled buy of crack cocaine outside an apartment complex. A suspect purchased crack from the officers. That suspect began to run, and police chased him to an area with two apartments, one on the left and one on the right. The suspect went into the apartment on the right. The police smelled marihuana coming from the apartment on the left. They knocked on the left apartment door and announced themselves as the police. The officers heard noises that sounded like the destruction of evidence and entered the apartment on the left without a warrant.
Inside that apartment, they found three people including Mr. King. Justice Alito’s majority opinion proclaims, “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.”13 I couldn’t have said it better myself.
The basic principle
Kentucky v. King adopts a common sense approach. “When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak.”14
“In [Kentucky v. King, the defendant] claim[ed] that the officers ‘explained to the occupants that the officers were going to make entry inside the apartment,’ but the record is clear that the officers did not make this statement until after the exigency arose.” The court decided in favor of the State because the officers acted pretty reasonably. They didn’t issue an ultimatum or threaten to break down the door. Footnote No. 4 of the opinion explains how the case may have turned out differently had the officers acted less professionally. “There is a strong argument to be made that … the exigent circumstances rule should not apply where the police, without a warrant … threaten that they will enter without permission unless admitted.”15
“Rustling around” and exigent circumstances
Kentucky v. King did not decide that exigent circumstances in fact existed. The court assumed the veracity of the facts about the officer hearing a rustling inside the room and his belief that the destruction of evidence was imminent. So don’t hold up this case in court and say the high court has ruled that rustling automatically equals exigent circumstances—the Supreme Court actually noted that that question was better left to the Kentucky Supreme Court, presumably because these issues are very fact-specific and the high court doesn’t want to get into the business of drawing those kind of lines.
The best strategy to get past this hurdle is to speak with an officer candidly and go into detail about his observations on the record. The more precise prosecutors can be and the more we can tie his observations to his experience and training, the more likely we are to win the hearing. For example, if the officer could hear a toilet flush or knew someone was running out the back door, then that is pretty good evidence that destruction of evidence was imminent. But if all he heard was someone turn the music down and lock the door, then that doesn’t sound like destruction of evidence. Warrantless entry must be based on genuine exigency.16
Kentucky v. King was decided in part because there was a split in the circuits about police-created exigency. Five different tests were being used in the United States Courts of Appeals prior to this decision.17 These tests were the result of defense arguments that we have all heard some version of before. Here is a list of the defense arguments that were specifically identified and rejected by the Kentucky v. King opinion.
• Bad faith: If the officer was creating exigent circumstances on purpose to enter without a warrant, that violates the Fourth Amendment. This argument was rejected because “our cases have repeatedly rejected a subjective approach, asking only whether ‘the circumstances, viewed objectively, justify the action.’”18
• Reasonable foreseeability: If it is reasonably foreseeable that knocking would cause the defendant to flush the drugs, then police shouldn’t knock. This claim was rejected because police may seize an item even though the officers may be “interested in an item of evidence and fully expect to find it in the course of [a protective sweep or other search].”19
• Probable cause and time to secure a warrant: The court should penalize officers who had probable cause and didn’t get a warrant but rather tried to obtain consent to search. This argument was rejected because the police have every right to attempt a simpler, faster, and less burdensome route to obtaining evidence than applying for a warrant.20
• Standard or good investigative tactics: The officer didn’t do what the standard officer in that area would do. This claim was rejected because that test would not create clear guidance for officers, and it invades upon the authority of law enforcement agencies.21
• Entry is imminent and inevitable: It is illegal for officers to make an occupant feel like they are coming in no matter what. This argument was rejected because it relies on subtleties such as tone of voice or the forcefulness of the knocks, creating an unworkable standard where officers would not know how loud was too loud.22
The officer is legally inside—now what?
Recalling the police report and Kentucky v. King analysis above, we can see that the officer has validly entered the home based on the exigent circumstances relating to destruction of evidence.
So is it legal to detain the suspects all in one room? Their freedom of movement is restricted, and they are certainly not free to leave—does that make their statements inadmissible? What about the guy who asked for a lawyer? How do you know whose apartment this is or who smoked the weed tonight?
Detaining suspects in one room and Miranda
Detaining the toking trio isn’t an issue unless prosecutors are trying to enter their statements into evidence at trial. Defense counsel may argue that their statements are inadmissible because the defendants were in custody and the officer has violated their Miranda rights, but in our situation prosecutors should argue that Miranda does not apply because the defendants’ statements were non-custodial.
A person is in custody when his freedom of movement is restrained to the extent usually associated with formal arrest.23 The test is not simply whether he is free to leave. Although it is true that a person can be in custody without being under formal arrest, the Court of Criminal Appeals applies multiple factors to determine whether a person is in custody.24 In a call responding to loud music and marihuana, huddling the individuals together should be considered an investigative detention. It’s similar to a DWI detention where police conduct a field sobriety test and ask questions about how much a suspect has been drinking. When an officer questions a suspect during an investigative detention, it’s generally not considered custodial interrogation.25 How else are police officers able to determine the answers to the appropriate questions? Do the defendants in this situation believe they are free to leave? No. But neither does a defendant who is pulled over for DWI. This doesn’t automatically make all statements inadmissible.26 Just because the officer has observed contraband and the defendants are the focus of a criminal investigation does not mean they are in custody.27
Again, “an individual is ‘in custody’ for purposes of Miranda ‘when placed under formal arrest or when a reasonable person in the suspect’s position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest.’”28 Nobody is happy about being told to sit down and stay in the living room to be asked questions about marihuana. But an innocent person would not feel like he is under arrest at that point.29 The reasonable person standard presupposes an innocent person.
There are countless cases where only one or two of the individuals are close enough to the marihuana to be the likely owners of it. In that type of case, everyone will be sat down but only a few will be arrested. The courts recognize that every situation is different and hold that “a determination of custody must be made on an ad hoc basis, in consideration of all of the objective circumstances of the detention.”30
The questions are part of an investigative detention. “An investigative detention involves detaining a person reasonably suspected of criminal activity in order to determine his identity or to momentarily maintain the status quo in order to garner more information.”31 That is exactly what is happening in our situation. All of this caselaw can be used to argue against the State as well, but we should still be able to rely on it.32
Fifth (not Sixth) Amendment right to counsel
Remember Snoop Dogg asking for a lawyer? When someone asks for a lawyer, either the Fifth or Sixth Amendment right to counsel may be an issue. The Sixth Amendment gives the right to counsel after the initiation of adversarial proceedings and does not apply in our fact pattern.33 The Fifth Amendment right to counsel doesn’t apply in our situation either because the suspect is not in custody. So just as there is no right to consult a lawyer before deciding to refuse a breath test, there is no right for Snoop to speak with his lawyer before he is asked questions about the marihuana.
However, the best practice here is to simply not ask him any questions. I would advise my officers to respect any person’s request for counsel. Police must scrupulously honor the right of an accused held in custody to cut off questioning.34 Snoop was very clear that he wanted to invoke his right. If he were not so clear, then there would be no need to stop questioning.35 “Maybe I should talk to a lawyer” doesn’t cut it.36
Officer Rock T. Ag is going to confiscate all three bongs and the marihuana. If an officer 1) sees an item in plain view from somewhere he has the right to be and 2) immediately recognizes the item as evidence, he may seize the item.37 In our fact pattern the marihuana is clearly evidence. The dragon is probably evidence as well because the officer may have seen these kinds of bongs before. Teddy Ruxpin on the other hand was probably not “immediately” recognized as evidence in a marihuana case.
Rock T. Ag also made a protective sweep. A protective sweep is a quick search based on officer safety.38 Searching a home is “generally not reasonable without a warrant issued on probable cause.”39 But if Rock reasonably believed that the rest of the apartment may have people hiding in it, he can look for them.40 He can’t search inside drawers, open the fridge, or look anywhere a person couldn’t fit.
In our police report Rock didn’t do a very good job saying he believed there may be a dangerous situation other than simply saying there were drugs and people in the house. We must have an “articulable suspicion that the house is harboring a person posing a danger to those on the arrest scene.”41 However, the Fifth Circuit has held that a protective sweep may be reasonable during drug arrests because weapons are commonly found with drugs.42
I haven’t answered every conceivable question, but I hope prosecutors are able to use this article as a starting point or reference the next time this comes up at docket. In summary, 1) Kentucky v. King held that police may enter a home without a warrant when defendants attempt to destroy evidence, so long as up to that point the police had not violated or threatened to violate the Fourth Amendment,43 2) custody is determined ad hoc and asks if a reasonable innocent person would have felt they were under arrest,44 and 3) all the defense tactics in the world can’t beat a reasonable police officer and prosecutor working together for justice.45
1 From the Urban Dictionary: The mandatory smoking rotation of a group of people, especially for weed blunts or joints. “Puff puff” means you take two short hits (usually the required limit), and “give” means you hand the smoking device to the person next to you in the rotation. This phrase was made popular by Chris Tucker’s character Smokey in the 1995 movie Friday.
2 The spelling of “marihuana” with an “h” comes straight from Texas Health and Safety Code §481.002(26) There are other ways spell it, including with a “j.”
3 California v. Carney, 471 U.S. 386, 390 (1985); State v. Guzman, 959 S.W.2d 631 (Tex. Crim. App. 1998).
4 Alabama v. White, 496 U.S. 325, 330-331 (1990).
5 Porter v. State, 93 S.W.3d 342 (Tex. App.—Houston [14th Dist.] 2002, pet. ref’d); Rodriguez v. State, 106 S.W.3d 224 (Tex. App.—Houston [1st Dist] 2000, pet. ref’d) (Porter and Rodriguez held that the police could freely approach the front door to conduct dog sniffs.); Horton v. California, 496 U.S. 128 (1990) (plain view).
6 Kentucky v. King, 563 U.S. ___, 131 S. Ct. 1849, 1856 (2011); Brigham City v. Stuart, 547 U.S. 398, 403 (2006); Gallups v. State, 151 S.W.3d 196, 201 (Tex. Crim. App. 2004); see Cooke v. State, 735 S.W.2d 928, 929 (Tex. App.—Houston [14th Dist.] 1987, pet. ref.).
7 Kentucky v. King, 563 U.S. ___, 131 S. Ct. 1849, (2011).
8 McNairy v. State, 835 S.W.2d 101, 107 (Tex. Crim. App. 1991) (methamphetamine case).
9 King at 1856; Fearance v. State, 771 S.W.2d 486, 510 (Tex. Crim. App. 1988).
10 King at 1856.
12 King, 563 U.S. ___, 131 S. Ct. 1849, 1856 (2011).
13 King at 1862.
15 King at 1858 n4.
16 Brigham City, 547 U.S. 398, 406 (2006).
17 King at 1857.
18 Id. at 1859.
20 Id. at 1860.
21 Id. at 1861.
23 Minnesota v. Murphy, 465 U.S. 420, 430 (1984); California v. Beheler, 463 U.S. 1121, 1125 (1983); McCrory v. State, 643 S.W.2d 725, 734 (Tex. Crim. App. 1982).
24 Melton v. State, 790 S.W.2d 322, 325 (Tex. Crim. App. 1990); Meek v. State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990); see Ramirez v. State, 105 S.W.3d 730, 739 (Tex. App.—Austin 2003 no pet.).
25 Anderson v. State, 787 S.W.2d 221, 228 (Tex. App.— Fort Worth 1990 no pet.).
26 Berkemer v. McCarty, 468 U.S. 420, 437-438 (1984) (holding normal questions incident to traffic stops are not custodial interrogation).
27 Beckwith v. United States, 425 U.S. 341 (1976); Meek v. State, 790 S.W.2d 618, 621 (Tex. Crim. App. 1990).
28 United States v. Stevens, 487 F.3d 232 (5th Cir. 2007) (citing United States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en banc)).
29 Ramirez v. State, 105 S.W.3d 730, 738 (Tex. App.—Austin 2003 no pet.); Florida v. Bostick, 501 U.S. 429, 438 (1991).
30 Ramirez, 105 S.W.3d at 738 (citing Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) and Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985)).
31 Ramirez, 105 S.W.3d at 739 (citing Terry v. Ohio, 392 U.S. 1, 20-21 (1968)).
32 Ramirez v. State identifies some situations that might constitute custody. “1) when the suspect is physically deprived of his freedom of action in any significant way, 2) when a law-enforcement officer tells the subject he cannot leave, 3) when law-enforcement officers create a situation that would lead a reasonable person to believe that his freedom of movement has been significantly restricted, or 4) when there is probable cause to arrest and law-enforcement officers do not tell the suspect he is free to leave. Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985). Our facts arguably meet all four of those criteria but so would any DWI stop. The hallmark of this area of law lies in the third prong. Would a reasonable person think he was restricted similar to formal arrest? I think the answer to that question is no. At least not yet.
33 United States v. Shaw, 701 F.2d 367, 380 (5th Cir. [Miss.] 1983), cert. denied, 465 U.S. 1067 (1984).
34 Hearne v. State, 534 S.W.2d 703, 707 (Tex. Crim. App. 1976).
35 Unless the defendant clearly invokes a right the officer can continue questioning or ask to clarify. See Davis v. United States, 512 U.S. 452 (1994).
36 Dinkins v. State, 894 S.W.2d 330, 350 (Tex. Crim. App. 1995).
37 Martinez v. State, 17 S.W.3d 677, 685 (Tex. Crim. App. 2000); Ramos v. State, 934 S.W.2d 358, 365 (Tex. Crim. App. 1996).
38 Maryland v. Buie, 494 U.S. 325, 328 (1990).
39 Id. at 331.
41 Id. at 336.
42 See United States v. Maldonado, 472 F.3d 388, 394 (5th Cir. 2006).
43 King, 563 U.S. ___, 131 S. Ct. 1849, 1856 (2011).
44 Ramirez, 105 S.W.3d at 738 (citing Dowthitt v. State, 931 S.W.2d 244, 255 (Tex. Crim. App. 1996) and Shiflet v. State, 732 S.W.2d 622, 629 (Tex. Crim. App. 1985)); Florida v. Bostick, 501 U.S. 429, 438 (1991)).
45 My own two cents. And special thanks to my wife for helping me write this article.