Pubdate: Sat, 26 May 2012
Source: Sierra Sun (Truckee, CA)
Copyright: 2012 Sierra Sun
Contact:  http://www.sierrasun.com/
Details: http://www.mapinc.org/media/2294
Author: Jim Porter
Note: Jim Porter is an attorney with Porter Simon, with offices in 
Truckee and Reno. He is a mediator and was the Governor's appointee 
to the Fair Political Practices Commission and McPherson Commission, 
both involving election law and the Political Reform Act.

'STRONG SMELL' OF POT JUSTIFIES A HOTEL ROOM SEARCH?

TRUCKEE, Calif. - Never underestimate the scope of the Fourth 
Amendment's restraint against unreasonable searches and seizures.

'Strong Smell' of Pot

Security personnel at a hotel in Los Angeles contacted police about a 
burglary. A hotel guest reported her laptop computer and BlackBerry 
missing from her room. After reviewing video surveillance footage, 
the police went to the hotel room where two female suspects were 
staying. They noticed a "strong smell" of marijuana.

They knocked and when a woman opened the door, the smell of marijuana 
was very strong so they asked everyone to step into the hallway. 
Police then conducted a "protective sweep" of the room. During the 
sweep, an officer noticed a BlackBerry phone in plain view. They also 
saw the victim's credit card and found a black laptop underneath the 
mattress. They had the burglars. You would think.

Trial Court

The burglars filed a motion to suppress evidence arguing there were 
no "exigent circumstances" permitting a warrantless entry into their 
hotel room, and there was no evidence a protective sweep (search) was 
necessary.

The trial court ruled the police officers could lawfully enter the 
hotel room to prevent the marijuana from being destroyed by "going up 
in smoke." The court concluded evidence of items "in plain view" was 
admissible; however, the court suppressed evidence of the laptop 
computer under the mattress.

The two burglars pleaded no contest to burglary and grand theft and 
were sentenced to three years formal probation. They appealed.

Burglary Rule No. 1: Never smoke pot to celebrate a successful 
burglary when champagne will do.

Search of Hotel Room

A guest room in a hotel is considered a home for purposes of the 
Fourth Amendment. "Exigent circumstances" are needed for a 
warrantless entry into one's home or hotel room even if there is 
probable cause to arrest. Searches inside a home without a warrant 
are presumptively unreasonable.

However, as always, there are a handful of exceptions that allow a 
warrantless entry into a home or hotel room: (1) hot pursuit of a 
fleeing felon; (2) imminent destruction of evidence (e.g., smoking or 
flushing the pot); (3) the need to prevent a suspect's escape; and, 
(4) the risk of danger to the police or to other persons inside or 
outside the dwelling.

Exigent Circumstances

The Court of Appeal looked at whether there was the possibility of 
imminent destruction of the marijuana evidence while a search warrant 
was being obtained. Was that the exigent circumstance to justify 
searching the hotel room?

The Court looked at one case where it was ruled the police did not 
have the right to search a home after they smelled pot and observed 
someone smoking marijuana through a window. While there was the 
possibility the smoker could get rid of the pot while a warrant was 
being obtained, the crime of smoking pot was too minor to support a 
warrantless entry.

Possession of less than 28.5 grams of marijuana is not a jailable 
offense in California. It's a misdemeanor punishable by a fine of not 
more than $100. To justify a warrantless home/hotel room search, the 
crime must be a jailable offense.

The Court then looked at whether the officers could have believed 
that more than 28.5 grams of marijuana was in the hotel room, which 
would have made the crime a jailable offense, justifying entry, i.e. 
where there's smoke there's fire - or something like that. Nope.

Court Ruling

The Court of Appeal concluded: "California has chosen to treat the 
offense of possession of less than 28.5 grams of marijuana as a minor 
offense that is nonjailable even for repeated offenders. One 
consequence of that decision is to preclude officers who see this 
offense being committed from entering a home (or hotel room) without 
a warrant or consent to seize the offender or the contraband, in 
order to prevent the imminent destruction of evidence of the offense."

The trial court should have suppressed the evidence seized during the 
warrantless entry of the hotel room. The no contest pleas are vacated 
and the two burglars/pot smokers are set free. I can smell them celebrating now.
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MAP posted-by: Jay Bergstrom