CO: Providing alcohol to a lot of minors justified warrantless entry into house

Police received neighborhood reports of “hundreds” of teenagers at a house party with plenty of underage drinking. Several officers responded and they saw the alcohol through windows and encountered really drunk teenagers coming out. Once the police were discovered, there was general panic inside as they attempted to flee. A warrantless entry was justified for the offense of providing alcohol to a minor (noting a split in authority). People v. Terhorst, 2015 COA 110, 2015 Colo. App. LEXIS 1207 (August 13, 2015):

[*30] Whether an underage drinking party attended by hundreds of suspected teenagers creates an exigent circumstance permitting police to enter a home without a warrant is an issue of first impression in Colorado. Case law from other states addressing similar issues is split. See, e.g., J.K. v. State, 8 N.E.3d 222, 237 (Ind. Ct. App. 2014) (mere occurrence of underage drinking does not give law enforcement carte blanche to enter a person’s home without a warrant); State v. Blackburn, 2008 ME 178, 960 A.2d 1148, 1150 (Me. 2008) (warrantless entry was justified by exigent circumstance of possible destruction of evidence by teenagers emptying and concealing alcohol); State v. Andrews, 177 Ohio App. 3d 593, 2008 Ohio 3993, 895 N.E.2d 585, 590-92 (Ohio Ct. App. 2008) (reversing conviction for contributing to delinquency of a minor where court concluded that no exigent circumstances existed because suspected underage drinkers were confined to the basement and there was no “chaotic scene”); State v. Jangala, 154 Ore. App. 176, 961 P.2d 246, 247 (Or. Ct. App. 1998) (reversing suppression order as to evidence found at teenage drinking party, because of potential destruction of evidence); see also Howes v. Hitchcock, 66 F. Supp. 2d 203, 215-16 (D. Mass. 1999) (concluding that threat of destruction of evidence at teenage drinking party and claim of imminent harm to life or limb were sufficient to support a finding that officers had qualified immunity in civil suit brought pursuant to 42 U.S.C. § 1983 (2012)).

[*31] As pertinent here, exigent circumstances can justify a warrantless search where there is a risk of immediate destruction of evidence. Mendez, 986 P.2d at 281. To satisfy the destruction of evidence exception, the police must have probable cause that contraband or evidence of criminal activity is located in the area to be searched and an articulable basis for their reasonable belief that relevant evidence is about to be destroyed. Id. at 282; People v. Crawford, 891 P.2d 255, 258 (Colo. 1995). The question is whether there is a real or substantial likelihood that the evidence might be removed or destroyed before the police can obtain a warrant. Mendez, 986 P.2d at 282. The perceived danger must be real and immediate, and “[t]he mere fact that evidence is of a type that can be easily destroyed does not, in itself, constitute an exigent circumstance.” Id.

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[*33] However, we think the trial court overlooked the potential destruction of the evidence of alcohol in the numerous bottles and cups the officers observed inside the home. The destruction of the alcohol inside the beverage containers is analogous to the destruction of illegal drugs, which is often the basis for the exigent circumstances exception. See Kentucky v. King, __ U.S. __, __, 131 S. Ct. 1849, 1857, 179 L. Ed. 2d 865 (2011) (noting that issues regarding exigent circumstances based on the destruction of evidence occur most frequently in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain).

[*34] Destruction of all of the bottles and cups would have been a challenging feat in a short period of time. But destruction of the alcohol itself — the relevant evidence of underage drinking — by emptying those containers and rinsing them would have been nearly as easy as flushing illegal drugs. See Crawford, 891 P.2d at 259 (it is not necessary that every item of evidence be easily destroyed for the exigent circumstances exception to apply); see also Howes, 66 F. Supp. 2d at 215 (“[A]n objectively reasonable officer in the circumstances faced by [the officers] could have concluded that, once [the officers] knocked on the front door and spoke to several partygoers, [some of the partygoers] would have attempted to destroy or at least conceal evidence of the teenagers’ drinking had the officers waited patiently to obtain a warrant.”); Blackburn, 960 A.2d at 1150 (potential that containers of alcohol remaining at party would be emptied justified warrantless entry to prevent destruction of evidence).