{"id":1976,"date":"2008-05-23T18:29:36","date_gmt":"2008-04-10T19:07:51","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-04-10T19:07:51","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=1976","title":{"rendered":"NH: Smell of burning marijuana can be an exigent circumstance"},"content":{"rendered":"

In a principled analysis, the N.H. Supreme Court holds that the smell of burning marijuana, as opposed to the staler smell of burnt marijuana, was exigent circumstances for an entry where the officers were at a motel on a theft investigation and came upon the marijuana odor. State v. Rodriguez<\/a>, 945 A.2d 676 (N.H. 2008):<\/p>\n

We need not decide here if our exigent circumstances analysis requires a strict differentiation between jailable and nonjailable offenses. We agree with the State, however, that when examining the totality of circumstances behind a finding of exigent circumstances, reliance upon Welsh appears to be out of place in light of McArthur. Further, we tend to agree with those jurisdictions that see in McArthur at least the intimation “that if any bright line exists for warrantless entries into the home, it should be drawn between jailable and nonjailable offenses rather than between felonies and misdemeanors,” Cherry v. Com., <\/em>605 S.E.2d 297, 307 (Va. Ct. App. 2004); see also Rideout<\/em>, 122 P.3d at 210 (citing cases). The possession of marijuana, no matter the quantity, is a jailable offense in this state. See RSA 318-B:26, II(d) (possession of marijuana is a class A misdemeanor); RSA 651:2, II(c) (2007) (class A misdemeanor punishable by imprisonment not to exceed one year).<\/p>\n

We are also persuaded by the reasoning of those jurisdictions finding that the odor of burning marijuana “is itself proof that evidence of criminal conduct is being destroyed,” Hess<\/em>, 680 N.W.2d at 325 (citing cases); see also State v. Hughes<\/em>, 607 N.W.2d 621, 628 (Wis.) (“The strong odor of marijuana that hit the officers as the door to the defendant’s apartment was opened gave rise to a reasonable belief that the drug — the evidence — was likely being consumed by the occupants and consequently destroyed. … Marijuana and other drugs are highly destructible.”), cert. denied<\/em>, 531 U.S. 856 (2000). We believe this reasoning is in closest consonance with our related case law.<\/p>\n

. . .<\/p>\n

Our holding, above, however, is not, by itself, dispositive in this case. No single factor controls our inquiry into whether exigent circumstances exist; instead, our review of the totality of the circumstances “includes an examination of the overall reasonableness of the police officers’ behavior prior to the entry,” id<\/em>. (quotations omitted). Further, the primary focus of our inquiry is “how the exigency came about.” Id<\/em>. at 805. Clearly, the police may not create the exigency in order to justify their warrantless entry, “yet the boundary between an exigency which naturally arises and an exigency which is created is unclear.” Id.<\/em> We have previously pointed to two factors as guideposts in that review. …<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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