The Utah Supreme Court holds that the mere smell of burning marijuana is not a sufficient exigent circumstance to justify a warrantless entry into the home even though it involves “destruction of evidence.” State v. Duran, 2007 UT 23, 156 P.3d 795, 573 Utah Adv. Rep. 3 (2007):<\/p>\n
We decline to pare back a fundamental constitutional guarantee where the commission of an offense–in this case, smoking marijuana–involves as its incidental but inevitable consequence the destruction of evidence. According to the testimony of the police officers who conducted the warrantless entry in this case, the marijuana was being “destroyed” by persons who were “in the very process of smokin’ up the evidence.” This is an odd departure, indeed, from the circumstances that typically attend destruction of evidence exigencies. In most instances, an exigency arises from the possibility that persons, alerted to the presence of law enforcement officials seeking to execute a search warrant, might understandably rid themselves of any trace of contraband. See United States v. Tobin<\/em>, 923 F.2d 1506, 1511 (11th Cir. 1991) (en banc) (holding that exigent circumstances were present where “the [law enforcement] agents could reasonably conclude from the defendants’ hurried actions and furtive looks that [they] were either aware or afraid that someone was watching them [and] [d]estruction or removal of … the narcotics was therefore a possibility” (footnote omitted)). The reverse is also true, as it is well-recognized that “[c]ircumstances are not normally considered exigent where the suspects are unaware of police surveillance.” Id<\/em>. at 1511; see, e.g., United States v. Elkins<\/em>, 300 F.3d 638, 656-57 (6th Cir. 2002); United States v. Davis,<\/em> 170 F. Supp. 2d 1234, 1239 (M.D. Fla. 2001).<\/p><\/blockquote>\n
Calling 911 where the caller, although not leaving her name, has to know that the number was captured and the telephone call recorded, is entitled to greater weight than an otherwise anonymous call. Commonwealth v. Costa, 448 Mass. 510, 862 N.E.2d 371 (March 13, 2007):<\/p>\n
In this regard, it is important to recognize that citizens who report criminal activity justifiably may be concerned for their own safety if their identity becomes known to the persons subsequently investigated or arrested, and for this reason may wish to remain anonymous. This circumstance should not stand as an insurmountable impediment to a favorable assessment of their reliability in a case such as the one before us. In this respect, we agree with Justice Kennedy’s observation that “a tip might be anonymous in some sense yet have certain other features, either supporting reliability or narrowing the likely class of informants, so that the tip does provide the lawful basis for some police action.” Id<\/em>. at 275. Some of those features might include “[i]nstant caller identification,” “[v]oice recording of telephone tips [that might] be used by police to locate the caller,” and “the ability of the police to trace the identity of anonymous telephone informants.” Id<\/em>. at 276.<\/p>\n
By providing information to the police after knowing that her call was being recorded, and that the number she was calling from had been identified, we conclude that the caller placed her anonymity sufficiently at risk such that her reliability should have been accorded greater weight than that of an anonymous informant. Although at the end of the conversation the caller appeared anxious to terminate the telephone call, and did not leave her name, it is apparent from the tape recording of the conversation that she was principally concerned about the defendant (not the police) knowing her identity if she were to be observed on the cell phone.n11<\/p>\n
n11 The caller was neither asked her name by the 911 operator nor did she say that she wanted to remain anonymous. Contrast Commonwealth v. Barros, 435 Mass. 171, 172 n.1, 755 N.E.2d 740 (2001).<\/p><\/blockquote>\n
Consent was not voluntary. People v. Gulla, 2007 N.Y. Misc. LEXIS 826, 237 N.Y.L.J. 41 (Rockland Co. February 15, 2007):<\/p>\n
In this case, the defendant was clearly in custody. People v. Yukl,<\/em> 25 N.Y.2d 585, 589, 256 N.E.2d 172, 307 N.Y.S.2d 857 (1969). Further, the “immediate events of an arrest, especially a resisted arrest, do, however, engender an atmosphere ordinarily contradictory of a capacity to exercise a free and unconstrained will.” People v. Gonzalez<\/em>, 39 N.Y.2d 122, 128, 347 N.E.2d 575, 383 N.Y.S.2d 215 (1976). In this case, the testimony makes clear that the defendant resisted being handcuffed and resisted being placed in the police car. Additionally, the police displayed their weapons in effectuating the arrest.<\/p>\n
At the time the consent was given, there was a large number of officers present in the vicinity of the defendant. Id. at 129. Further, the fact that the defendant was handcuffed at the time is significant. Id. Additionally, the defendant was not cooperative throughout the encounter with police.<\/p>\n
Significantly, the defendant was agitated and intoxicated at the time the consent was allegedly given.<\/p>\n
Prior to giving consent, the defendant was not Mirandized and not advised of his right to withhold his consent. Id<\/em>. at 130. Although such warnings are not absolutely essential to establishing voluntary consent, failure to advise the defendant of his right to refuse is a factor to be considered. Id<\/em>.<\/p>\n
The only factor that does not weigh against a finding of voluntariness is the factor concerning the defendant’s background. This factor favors neither side since no evidence was adduced at the hearing.<\/p>\n
Accordingly, the People have not met their burden of establishing that the defendant’s consent was voluntary.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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