Officers on bike patrol encountered the strong smell of burning marijuana, and they quickly were able to pinpoint the location as defendant’s apartment. They went to the door for a knock-and-talk and defendant’s mother answered the door. They explained why they were there, and she denied anybody smoking marijuana. Two more times they knocked and she opened the door, briefly talked and denied the second time and then shut the door. The third time the officers heard noise inside and finally the door opened and she admitted her son was smoking a blunt, so they came in. This was with exigent circumstances because it was obvious she knew what was going on, and it was not police created merely because they came to the door. Evans v. Commonwealth, 2015 Va. LEXIS 115 (September 17, 2015):
In this case, two facts establish exigent circumstances prior to the officers’ entry into the apartment: first, the cloud of heavy and extremely strong marijuana odors, some of which blew through the open doorway “like a gust of wind,” and, second, the contemporaneous knowledge of Evans’ mother that the investigating officers at her doorway smelled the marijuana, which would naturally give her a potent incentive to destroy, discard, or hide the illegal drug (or ask others to do so) soon after she closed the door. By themselves, these facts establish exigent circumstances based upon Grissett, Cephas, and a host of analogous cases. See supra note 6.
Those facts, while sufficient in themselves, are not the only facts in this case demonstrating exigent circumstances prior to the officers’ entry into the apartment. After one of the officers explained to Evans’ mother that they smelled marijuana coming from the apartment window (even as the odor continued to pour through the doorway), she slammed the door in his face. She was noticeably shaking and nervous as she did so.
If the officers had made up the assertion without any basis simply to provoke her, slamming the door would have been an understandable nonverbal rebuke. But given that everyone at the doorway, including Evans’ mother, could simultaneously smell the odiferous cloud of marijuana, her statement, “Ain’t nobody smoking weed in here,” was little more than an unintentional apophasis worthy of the Bard’s retort: “The Lady doth protest too much, methinks.” [Hamlet, act 3, sc. 2]
Her inept remark, followed by slamming the door, implied that Evans’ mother knew the police officers were aware that marijuana was present in the apartment, and she needed a little time and privacy to do something about the problem. See, e.g., United States v. Urrego de Soto, 885 F.2d 354, 368 (7th Cir. 1989) (finding exigent circumstances and holding that the threat of destruction of evidence justified a warrantless entry of an apartment when the occupant responded to an officer’s knock and identification by “attempt[ing] to slam the door in [the officer’s] face”).
Equally telling is the fact that Evans’ nervous and shaking mother waited about five minutes before opening the door following the third knock. During that time frame, one of the officers heard movement, though he did not know who was moving about or what was being moved. Evans’ mother had promptly answered the door twice before; why would she not do so on the third occasion? Perhaps Evans’ mother was simply tired of talking to the police. But the more realistic hypothesis is that she was informing her son (who she later said had been smoking a marijuana blunt at the time) of the presence of the police at the front door.
The conspicuously delayed response of Evans’ mother, coupled with unspecific sounds of movement, contributes to the totality of facts demonstrating exigent circumstances. See, e.g., United States v. Aguirre, 664 F.3d 606, 612 (5th Cir. 2011) (finding that the lack of response when the officers knocked and announced themselves followed by noises inside the home contributed to the totality of exigent circumstances); Cherry v. Commonwealth, 44 Va. App. 347, 368, 605 S.E.2d 297, 307 (2004) (holding that unidentified “significant movement” heard inside the house was an additional fact contributing to the totality of exigent circumstances).
. . .
Finally, we must address Evans’ assertion in the trial court that the police, by announcing their presence and their awareness of a heavy odor of marijuana, created the exigency wholly by police action, which, Evans concluded, “wholly set up” the circumstances in which “foreseeable evidence would be destroyed.” This argument, after having gained some traction among lower courts, was expressly rejected by King, 563 U.S. at ___, 131 S. Ct. at 1859-62. Writing for an eight-member majority in King, Justice Alito explained:
[I]n the vast majority of cases in which evidence is destroyed by persons who are engaged in illegal conduct, the reason for the destruction is fear that the evidence will fall into the hands of law enforcement. Destruction of evidence issues probably occur most frequently in drug cases because drugs may be easily destroyed by flushing them down a toilet or rinsing them down a drain. Persons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police. Consequently, a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.
Id. at __, 131 S. Ct. at 1857.
