Jim Porter: ‘Strong smell’ of pot justifies a hotel room search? | SierraSun.com
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Jim Porter: ‘Strong smell’ of pot justifies a hotel room search?

Jim PorterSpecial to the Sun

TRUCKEE, Calif. andamp;#8212; Never underestimate the scope of the Fourth Amendmentandamp;#8217;s restraint against unreasonable searches and seizures.andamp;#8216;Strong Smellandamp;#8217; of PotSecurity 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 andamp;#8220;strong smellandamp;#8221; 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 andamp;#8220;protective sweepandamp;#8221; of the room. During the sweep, an officer noticed a BlackBerry phone in plain view. They also saw the victimandamp;#8217;s credit card and found a black laptop underneath the mattress. They had the burglars. You would think.Trial CourtThe burglars filed a motion to suppress evidence arguing there were no andamp;#8220;exigent circumstancesandamp;#8221; 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 andamp;#8220;going up in smoke.andamp;#8221; The court concluded evidence of items andamp;#8220;in plain viewandamp;#8221; 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 RoomA guest room in a hotel is considered a home for purposes of the Fourth Amendment. andamp;#8220;Exigent circumstancesandamp;#8221; are needed for a warrantless entry into oneandamp;#8217;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 suspectandamp;#8217;s escape; and, (4) the risk of danger to the police or to other persons inside or outside the dwelling.Exigent CircumstancesThe 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. Itandamp;#8217;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 thereandamp;#8217;s smoke thereandamp;#8217;s fire andamp;#8212; or something like that. Nope. Court RulingThe Court of Appeal concluded: andamp;#8220;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.andamp;#8221; 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.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. He may be reached at porter@portersimon.com or at the firmandamp;#8217;s website http://www.portersimon.com.


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