ND: No exigency for a marijuana grow warrantless search

The evidence does not support the state’s contention that a warrantless search of the defendant’s house was required because of exigent circumstances. The timeline shows no exigency because the officers had reports of marijuana plants in the house for days and confirmed the day of the search. State v. Gagnon, 2012 ND 198, 821 N.W.2d 373 (September 25, 2012):

[*P14] The timeline of events in this case does not support the conclusion a warrantless search was necessary to avoid imminent destruction of evidence. Nason observed marijuana in Gagnon’s window on May 28 and reported his observation to the BCI on May 29. When Niebuhr traveled to Douglas on June 3, marijuana plants were still in Gagnon’s window. Following Niebuhr’s initial observation, the plants remained in the window for approximately forty minutes while Niebuhr waited for additional officers. Nothing in the record indicates destruction of the plants became imminent when the additional officers arrived. To the contrary, Gagnon’s failure to remove the marijuana from the window and Yellowbird’s invitation that the officers “come in,” indicate Gagnon and Yellowbird were unaware their residence was being observed by law enforcement until Niebuhr and Huber walked in their door. Finding a warrantless search was justified under these circumstances would permit law enforcement to create an exigency by deciding to approach the residence without a warrant despite ample opportunity to obtain one. In addition, nothing in the record indicates the safety of the officers or any other person was threatened before the officers approached Gagnon’s residence. The State argues that after Niebuhr and Huber entered the residence, their safety was a concern because an unidentified person could have been inside. The presence of unidentified persons inside a residence always will be a possibility and that possibility, without more, does not create an exigency sufficient to justify a warrantless search. See United States v. Waldner, 425 F.3d 514, 517 (8th Cir. 2005) (holding a protective sweep of an office violated the Fourth Amendment when “there [was] no evidence that the officers had any articulable facts that an unknown individual might be in the office, or anywhere else in the house, ready to launch an attack”). This is especially true when any limitations on law enforcement entry would have and could have been eliminated during the ample time–here days–available to secure a warrant. Under the facts of this case, we conclude that neither the possibility of the destruction of evidence nor the need to protect officer safety were exigent circumstance justifying a warrantless search.