NJ: Smell of burnt MJ coming from house isn’t sufficient exigency for warrantless entry

Police received multiple calls, some anonymous, about shots fired, and they were ultimately directed to defendant’s house which they approached from the rear. One caller said a gun was kept in a doghouse, and there were pit bulls in the backyard. There was a chain link fence and defendant refused to come to the fence to be frisked for weapons. When the door was opened, the officer smelled burnt marijuana coming from the house. The warrantless search of the house was unjustified based on smell of burning marijuana. State v. Samuell, 2015 N.J. Super. Unpub. LEXIS 363 (February 25, 2015):

At most, the court’s acceptance of Officer Bledsoe’s testimony that he detected the smell of marijuana established probable cause to suspect unlawful possession of marijuana by one or more occupants of the house. But the smell of marijuana and the other information the police learned was still not sufficient for a warrantless police entry.

. . .

While the smell of marijuana provided probable cause, it did not establish exigent circumstances for a warrantless entry. In Johnson v. United States, 333 U.S. 10, 12, 68 S. Ct. 367, 368, 92 L. Ed. 2d 436, 439 (1948), an informant told police of persons smoking opium in a hotel room. The police investigated and smelled “a strong odor of burning opium” coming from the room. Ibid. They knocked and announced themselves as police. After a delay during which the police heard some “shuffling or noise,” the defendant opened the door. The police entered without a warrant and arrested her. They searched the room and found opium and a smoking device. Ibid.

The Supreme Court held that the police entry and search violated the Fourth Amendment. Id. at 14-15, 68 S. Ct. at 368-69, 92 L. Ed. 2d at 440-41. The Court noted that “[n]o suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, [*12] except perhaps the fumes which we suppose in time would disappear.” Id. at 15, 68 S. Ct. at 369, 92 L. Ed. 2d at 441. See also Taylor v. United States, 286 U.S. 1, 5-6, 52 S. Ct. 466, 467, 76 L. Ed. 951, 953 (1932) (the smell of whiskey coming from a garage did not create exigent circumstances for warrantless entry by federal prohibition agents).

In State v. Holland, 328 N.J. Super. 1 (App. Div. 2000), rev’d on other grounds, 176 N.J. 344 (2003), we stated that the smell of burning marijuana may establish probable cause but not exigent circumstances to make a warrantless entry and to search when it shows nothing more than probable cause that a disorderly persons offense is being committed. Id. at 7-8, 10-11 (citing Welsh, supra, 466 U.S. at 740, 104 S. Ct. at 2091, 80 L. Ed. 2d at 732). Similarly, in Bolte, supra, 115 N.J. at 597, the Supreme Court held there was no showing of exigent circumstances for warrantless entry of the suspect’s home where police only had probable cause that he had committed disorderly persons and traffic offenses.

Although there is often the prospect of destruction or concealment of evidence when the police suspect illegal possession of marijuana, that prospect alone does not establish exigent circumstances where the police have nothing more than evidence of a disorderly persons or lesser offense. See Holland, supra, 328 N.J. Super. at 10-11; see also Welsh, supra, 466 U.S. at 753-54, 104 S. Ct. at 2099-100, 80 L. Ed. 2d at 745-46 (loss of evidence of suspect’s intoxication as blood alcohol level dissipates with the passage of time).