{"id":9050,"date":"2013-12-18T10:10:19","date_gmt":"2013-07-12T06:30:50","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-07-12T06:30:50","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=9050","title":{"rendered":"CA10: Smoking marijuana in the house not a “serious crime” for exigent circumstances"},"content":{"rendered":"

The officer received anonymous tips about drug dealing at the defendant\u2019s home, and he staked it out seeing cars there but establishing not much of anything other than he could smell marijuana at the house. Granted there was [barely] probable cause, but not for a \u201cserious crime.\u201d Exigent circumstances were lacking because the occupant was a known felon with \u201cprison tattoos\u201d; no weapon, no nothing. United States v. Mongold<\/a>, 528 Fed. Appx. 944 (10th Cir. 2013):<\/p>\n

<\/p>\n

At the suppression hearing, Agent Stephens argued that he feared for his and the other officers’ safety because the home’s owner, Ms. Moore, was a known felon, and he suspected Mr. Mongold was a felon as well, based on his “prison tattoos.” … On appeal, the Government does not argue that the need to protect the officers’ safety excused their entry, but the district court cited it as a basis to justify the officers’ warrantless entry of Ms. Moore’s home. We therefore address it here.<\/p>\n

Officer safety is not an alternative ground to affirm because the first element of the test is dispositive. The Government presented no evidence that the officers had “reasonable grounds to believe that there [was] immediate need to protect their lives or others.” Smith, 797 F.2d at 840. Before entering the home, the officers had not seen a weapon or any other indication of heightened danger. They could most easily have protected the officers’ safety by leaving Ms. Moore’s home, not by entering it.<\/p>\n

The test for justifying warrantless entry into a home based on the need to protect officer safety requires that the facts establish all three elements of the test. The Government failed to provide evidence to satisfy the first element. The officers’ warrantless entry therefore was not justified by the need to protect officer safety. Because we determine that the first element of the three-part test is dispositive, we do not address the last two elements of the test.<\/p>\n

* * *<\/p>\n

In sum, the district court erred by accepting the magistrate judge’s determination that destruction of evidence and officer safety justified the warrantless entry. The officers’ warrantless entry of Ms. Moore’s home violated her Fourth Amendment rights and those of the home’s other occupants.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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