Ohio stretches to apply Hudson to a failure to announce where it did not have to

The officers came to execute a search warrant and they entered and grabbed the defendant who showed up at the door with a hammer in his hand. Because he had no prior history of violence and they really did not know what the hammer meant, the entry without announcement was a violation of defendant’s statutory and constitutional rights. However, the court applies Hudson to sustain the search. State v. Gilbert, 2007 Ohio 2717, 2007 Ohio App. LEXIS 2520 (4th Dist. May 30, 2007).*

Comment: This court never addresses the “useless gesture” exception to knock and announce: The defendant saw the officers when he came to the door. Therefore, if the defendant knew who they were, then the useless gesture exception clearly applies, so why did they have to announce? This is just a shameless excuse to apply Hudson where the facts do not justify it. Ohio defense lawyers should be concerned with this court’s rush to jump on the Hudson bandwagon where the facts clearly do not justify it.

Pennsylvania adopts the federal plain view standard for its state constitutional standard, and then holds that the facts here justified a plain view of a pill bottle in a car stopped for a traffic offense. Commonwealth v. McCree, 592 Pa. 238, 924 A.2d 621 (2007).

A valid traffic stop justifies checking the passengers for the officer’s own safety, and that produced a shotgun. The finding of the gun was reasonable. State v. Canezaro, 957 So. 2d 136 (La. 2007).*

Encountering the defendant at home, the officer could smell burning marijuana “emanating from the partially open door.” A warrantless entry was justified. Hardy v. Broward County Sheriff’s Office, 238 Fed. Appx. 435 (11th Cir. 2007)* (unpublished):

The Deputies therefore had probable cause to believe that someone inside the apartment had been smoking cannabis and that this cannabis could be found somewhere inside the apartment. Moreover, had the Deputies delayed entering the apartment, they risked the “loss, destruction, removal, or concealment of evidence” of this suspected crime, thereby creating exigent circumstances. See id. Thus, even had the cocaine-filled, plastic bags not been “in plain view” from outside the partially open door of the apartment (that is, even had the ceramic bowl been covered with a lid as Hannah alleged), the Deputies had probable cause to believe that cannabis could be found somewhere inside the apartment (including inside the ceramic bowl), and there was a risk that Hannah would remove or destroy this cannabis (or the possible vestiges thereof). This combination of probable cause and exigent circumstances justified the Deputies’ warrantless search of Hannah’s apartment, and therefore, the cocaine found inside the ceramic bowl was properly seized. That the Deputies did not find any cannabis is of no moment, especially where following Hannah’s arrest, he admitted that he had smoked cannabis inside the apartment just before the Deputies arrived.