Tuesday, May 17, 2011

The Smell Of Marijuana, Part II

When I began my career, I didn't remember much hearing about the "smell" of marijuana. I heard a lot about young black men chronically dropping bags of cocaine in the presence of police officers, and the shock, shock I say of police officers when asked on the stand whether they coerced in any way the consent to search all of my clients. "No sir, he was very cooperative."

Then, a few years ago, I wondered if I was the only person not noticing the smell of marijuana all over the city - mostly while sitting in my car behind another car (usually a modified Honda Civic) in which the occupants were listening to loud music, but also behind the doors of homes.

Turning to the United States Supreme Court's decision yesterday regarding exigency as a exception to the warrant requirement under the Fourth Amendment, I am not shocked, surprised or otherwise in wonderment that the smell of marijuana, oh the smell, is good enough for a warrantless search of a house.

My comedic relief comes from this part of the opinion:

Officer Steven Cobb, one of the uniformed officers who approached the door, testified that the officers banged on the left apartment door "as loud as [they] could" and announced, "`This is the police'" or "`Police, police, police.'" Id., at 22-23. Cobb said that "[a]s soon as [the officers] started banging on the door," they "could hear people inside moving," and "[i]t sounded as [though] things were noises, Cobb testified, led the officers to believe that drug-related evidence was about to be destroyed.

I know - "c'mon Brian, everyone knows what the sound of destroying marijuana sounds like."

And the officer was right - the noises he heard was the sound of marijuana being destroyed:

...the officers entered the apartment, and they found three people in the front room: respondent Hollis King, respondent's girlfriend, and a guest who was smoking marijuana.

In reversing the lower court, the Kentucky Supreme Court tried to make a go of the argument that cops can't create the exigent circumstances. Specifically, that by banging on a door, the cops created a situation where the drug dealers would begin to destroy drugs. The Supremes quickly disposed of that argument.

It's a great Fourth Amendment opinion. We are reminded of the notion of cop vs. defendant with this statement:

Respondent argues that the officers "demanded" entry to the apartment, but he has not pointed to any evidence in the record that supports this assertion.

The only evidence being the banging on the door. Why would anyone think that people with guns banging on a door were demanding entrance?

The criminal defense bar knows where this case goes. We'll be hearing new and different things in drug cases. The "noises" of drugs being destroyed will become a staple of the direct examination in response to the 16th "what happened next."

The opinion never discussed what the "noises" of marijuana being destroyed sounds like.

I trust it will be defined by the totality of the circumstances.

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter