TX: Exigency of destruction of evidence no longer assumed from smell of MJ during knock-and-talk

Texas Court of Criminal Appeals refuses to assume exigency that the occupant will destroy marijuana just because an officer smelled it during a knock and talk. Turrubiate v. State, 399 S.W.3d 147 (Tex. Crim. App. 2013) (dissent here):

The State contends that, given the strong odor of marijuana emanating from appellant’s home, it was reasonable for the trial court to conclude that appellant was aware that the police were on his trail when he opened the door. Despite the lack of furtive movements, the State contends that these circumstances, alone, gave the officer reason to believe that appellant would attempt to destroy the marijuana absent immediate intervention. We disagree.

We can conceive of many instances in which an occupant possessing contraband would not attempt to destroy it after a police officer has identified himself at the occupant’s door. For example, a police officer may have probable cause to believe that a high-school student is in possession of marijuana that he sells from his bedroom in his parents’ home. The student’s parents, knowing that the officer is on the student’s “trail” for the marijuana in their home, would not necessarily attempt to destroy the contraband. But the State’s proposed approach would permit the warrantless search because an officer has probable cause and there is a presumed exigency that someone in possession of contraband will destroy it when he knows a police officer is on his trail. Or an occupant may know that it would be futile to attempt to destroy the illegal substance, such as someone in possession of 100 kilos of well-packaged cocaine. Or an occupant may decide to risk keeping the illegal substance despite the police presence, such as someone who believes he has successfully concealed the substance against police search. A reviewing court should not presume, therefore, that a showing that an occupant possessed contraband and that an officer with probable cause knocked and announced himself also shows that destruction of evidence was imminent.

Although the Supreme Court did not reach the ultimate question as to whether there actually were exigent circumstances in King, the Court discussed the evidence that tended to show the existence of those circumstances. King, 131 S. Ct. at 1862. This included evidence that (1) police officers smelled marijuana coming from an apartment and (2) after officers banged on the apartment door, they “‘could hear people inside moving,'” and “‘[i]t sounded as [though] things were being moved inside the apartment.'” Id. at 1854. Those noises led the officers to believe that “drug-related evidence was about to be destroyed.” Id.

By comparison, the only facts that purportedly establish exigent circumstances in this case are the odor of marijuana and appellant’s knowledge that a police officer was at appellant’s door. Lacking is the additional evidence discussed in King of attempted or actual destruction based on an occupant’s movement in response to the police knock. Id. We require some evidence of exigency beyond mere knowledge of police presence and an odor of illegal narcotics.

United States v. Staley posted 4/13 contra.

Also consider State v. Walker, 213 N.J. 281, 62 A.3d 897 (2013), where defendant answered the door smoking a joint, saw the police, and tried to run back in. An entry was held justified:

Next, a second significant event occurred once again caused by defendant’s action. He discarded the marijuana cigarette, retreated into his apartment, and attempted to close the door. At this point, because the officers directly observed defendant committing an offense in their presence and attempting to flee, they were compelled to act to prevent defendant from disposing of the marijuana cigarette, or eluding the officers.

Although the underlying offense here, possession of marijuana, is a disorderly persons offense, the circumstances indicate that the officers’ warrantless entry into defendant’s home was objectively reasonable for several reasons. First, the officers saw defendant commit the disorderly persons offense. Second, there was a reasonable belief that the evidence was about to be lost or destroyed. Third, the circumstances presented urgency. Any delay would certainly impede apprehension of defendant and seizure of evidence. These facts distinguish this matter from the factual bases presented in Holland, supra, where an officer merely smelled marijuana smoke emanating from defendant Holland’s house, and where an officer smelled marijuana from outside of a house where defendant Califano was staying. 328 N.J. Super. at 3-6. Moreover, these facts clearly distinguish this case from Welsh, supra, where the probable cause to believe that the defendant committed motor vehicle violations was based on a witness’s statement that the defendant was driving erratically. 466 U.S. at 742, 104 S. Ct. at 2094, 80 L. Ed. 2d at 738.

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