CA4: Ordering defendant to open his door is a search and officers could not then demand entry

A police command to open one’s door is a search. This case is similar to Johnson v. United States (1948) that the officer smelling marijuana needed a warrant to enter. They just could not bang on the door and create an exigency. United States v. Mowatt, 513 F.3d 395 (4th Cir. 2008):

The government’s first argument, that the officers’ requiring Mowatt to open his door so that they could see him did not constitute a search, is easily resolved. It is well established that a search occurs for Fourth Amendment purposes “when officers gain visual or physical access to a … room after an occupant opens the door not voluntarily, but in response to a demand under color of authority.” United States v. Conner, 127 F.3d 663, 666 (8th Cir. 1997). Under such circumstances, the fact that “the officers gained visual access to the interior of a dwelling without physically entering it is irrelevant to the question [of] whether a search was effected.” United States v. Winsor, 846 F.2d 1569, 1572 (9th Cir. 1988) (en banc).

. . .

Johnson v. United States, 333 U.S. 10 (1948), governs our decision. In Johnson, police officers obtained information from an informant that people were smoking opium in a hotel. When the officers went to the hotel to investigate, they immediately recognized the smell of opium, and then traced the odor to a particular room. Not knowing who occupied the room, the officers knocked and identified themselves as police. After a slight delay, there was “some shuffling or noise” in the room and then the defendant opened the door. Id. at 12 (internal quotation marks omitted). The lead officer told the defendant that he wanted to talk to her about the opium smell, and the defendant let the officers into the room. The officers proceeded to arrest the person who opened the door and searched the room, uncovering incriminating opium and smoking apparatus. A district court refused to suppress the evidence, and the Ninth Circuit affirmed.

The Supreme Court reversed. The Court concluded that the officers’ entry into the room had been “demanded under color of office” and was therefore not by the defendant’s consent. Id. at 13. It also determined that “[a]t the time entry was demanded the officers were possessed of evidence which a magistrate might have found to be probable cause for issuing a search warrant.” Id. The Court thus held that the warrantless search was unconstitutional, noting that “[n]o reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons.” Id. at 15. The Court further added that, at the time the officers announced themselves and demanded entry, there was no exigency justifying dispensing with the warrant requirement. See id. In particular, the Court noted: “No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time would disappear. But they were not capable at any time of being reduced to possession for presentation to court.” Id.

We see no basis for distinguishing Johnson from the case at bar. The officers here likewise offered no justification for not seeking a warrant prior to knocking on the door, other than the slight delay or inconvenience that obtaining a warrant might have caused, reasons Johnson held were not sufficient. See id. Thus, although the officers had every right to knock on Mowatt’s door to try to talk to him about the complaint, see United States v. Cephas, 254 F.3d 488, 494 (4th Cir. 2001), without a warrant, they could not require him to open it. See Conner, 127 F.3d at 666.

Taking the facts most favorably to the defendant who prevailed on his suppression motion, the officer had reasonable suspicion for the defendant’s stop in a grocery store parking lot known for hand to hand drug sales. The activity observed here was unmistakable. United States v. McCoy, 513 F.3d 405 (4th Cir. 2008).*