1998 -NMCA- 124, State v. Wagoner, 18726

Decision Date20 July 1998
Docket NumberNo. 18726,18726
Parties, 1998 -NMCA- 124 STATE of New Mexico, Plaintiff-Appellant, v. Tim WAGONER, Defendant-Appellee.
CourtCourt of Appeals of New Mexico
OPINION

HARTZ, Chief Judge.

¶1 The State appeals the district court's order suppressing evidence seized from Defendant's residence. The district court held that a law enforcement officer had acted unlawfully when he conducted a warrantless "sweep" of the residence to look for persons who could destroy evidence or threaten the officer's safety. The court ruled that the officer had probable cause to believe that there was marijuana in the residence but that no exigent circumstances justified entering without a warrant. Although the officer later obtained a search warrant for the residence and seized evidence pursuant to the warrant, the district court suppressed the evidence because of the prior unlawful entry.

¶2 On appeal the State contends that the warrantless entry was justified by the need to prevent the destruction of evidence. Alternatively, it contends that even if the original entry was unlawful, the warrant was supported by information obtained prior to the entry, so the evidence seized was not the fruit of the unlawful entry. We affirm the district court's decision that the original entry was unlawful. But we remand for the district court to determine whether the search warrant was the fruit of the unlawful entry.

I. Background

¶3 San Juan County Deputy Sheriff Scott Wehrman was eating Sunday dinner at a restaurant on April 27, 1997, when a waitress approached him with a tip. While working as a bus driver for the Aztec Public Schools, the waitress had noticed an unusually heavy amount of vehicular traffic coming and going from the residence located at 211 Hartman, near an Aztec elementary school. She expressed her belief that the traffic indicated illegal drug activity at the residence. After dinner Wehrman and Deputy Floyd Foutz went to the residence to investigate.

¶4 The residence was a single-wide trailer, about 14 feet by 65 feet, surrounded by a waist-high chain link fence. As the deputies approached the door, Wehrman detected the odor of burning marijuana coming from an open window. When Wehrman knocked on the door, a voice responded, "Hang on a minute." Wehrman then heard what appeared to be running or the scuffling of feet inside the residence. Approximately one minute later Defendant opened the door. Wehrman smelled an even stronger odor of burning marijuana. Defendant, who was on crutches, and his thirteen-year-old son came to the door.

¶5 Wehrman and Defendant had a conversation on the front porch that lasted a few minutes. Wehrman told Defendant that he had received a complaint of illegal drug activity and mentioned the odor of marijuana. Defendant denied that there was marijuana in the trailer. Wehrman repeatedly asked Defendant for consent to search the trailer, even asserting that he had the right to conduct the search. Defendant refused to consent, telling the deputies that they needed to get a warrant.

¶6 Both Defendant and his son told Wehrman that there was no one else in the trailer. Moreover, after Defendant and his son came outside. Wehrman heard no more noise from within the trailer. Nevertheless, Wehrman entered the trailer to determine whether anyone else was inside. While walking through the trailer, he did not have his gun drawn. In the master bedroom Wehrman noticed in plain view a triple-beam scale and several clumps of a green leafy substance.

¶7 After checking out the trailer, Wehrman left to obtain a search warrant, while other deputies remained at the trailer. Wehrman's affidavit for the warrant recited what he had been told by the school bus driver, what he smelled upon approaching the trailer, what happened while he was outside the trailer, and what he observed while going through the trailer. On the basis of the affidavit a magistrate issued a search warrant. The search uncovered 300 grams of marijuana and baggies in various parts of the trailer.

¶8 Defendant was charged with the distribution of marijuana in a drug-free school zone, a third degree felony. See NMSA 1978, Section 30-31-22(C)(1)(a) (1990). He moved to suppress the evidence. At the suppression hearing the parties stipulated to the testimony of the magistrate who issued the warrant. The sole live witness was Wehrman. The district court ruled that Wehrman was not justified in entering the trailer before obtaining the warrant. Although the court held that the warrant could have been issued with the information in the affidavit obtained prior to the entry, it suppressed all the evidence seized. The State appeals.

II. Discussion
A. The Initial Entry

¶9 We begin by discussing the requirements of the Fourth Amendment to the United States Constitution. Although the Fourth Amendment constrains only the federal government, the Fourteenth Amendment imposes the same constraints upon the States. See Elkins v. United States, 364 U.S. 206, 213, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960). Before law enforcement officers can conduct a search, the Fourth Amendment ordinarily requires that they have not only probable cause, but also a warrant. See Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 70 L.Ed. 145 (1925). The chief function of the warrant requirement is to permit a judge to oversee the investigative activities of law enforcement officers. See generally Note, Police Practices and the Threatened Destruction of Tangible Evidence, 84 Harv.L.Rev. 1465, 1469-72 (1971). The fear is that enthusiastic law enforcement officers cannot satisfactorily assess probable cause. As stated by the Supreme Court, "In their understandable zeal to ferret out crime and in the excitement of the capture of a suspected person, officers are less likely [than judges] to possess the detachment and neutrality with which the constitutional rights of the suspect must be viewed." Trupiano v. United States, 334 U.S. 699, 705, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948).

¶10 The warrant requirement is of particular value in protecting the home from police intrusion. The "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). "[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant." Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

¶11 Only a few exigent circumstances have been recognized by the Supreme Court as overcoming the warrant requirement. See United States v. Sangineto-Miranda, 859 F.2d 1501, 1511 (6th Cir.1988); 3 Wayne R. LaFave, Search and Seizure § 6.5(a) (1996). One is the threatened destruction of evidence. See Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (blood alcohol); Sangineto-Miranda, 859 F.2d at 1511-12. But this exception must be closely constrained or the exception would become the rule. Not every possibility that evidence will be destroyed can justify warrantless entry of a residence. Courts have imposed several requirements.

¶12 First, there must be a real possibility that evidence will be destroyed if law enforcement officers cannot enter the premises before they obtain a search warrant. A number of courts have followed the leading case of United States v. Rubin, 474 F.2d 262, 268 (3rd Cir.1973), which states:

When Government agents ... have probable cause to believe contraband is present and, in addition, based on the surrounding circumstances or the information at hand, they reasonably conclude that the evidence will be destroyed or removed before they can secure a search warrant, a warrantless search is justified. The emergency circumstances will vary from case to case, and the inherent necessities of the situation at the time must be scrutinized. Circumstances which have seemed relevant to courts include (1) the degree of urgency involved and the amount of time necessary to obtain a warrant, (2) reasonable belief that the contraband is about to be removed, (3) the possibility of danger to police officers guarding the site of the contraband while a search warrant is sought, (4) information indicating the possessors of the contraband are aware that the police are on their trail, and (5) the ready destructibility of the contraband and the knowledge that efforts to dispose of narcotics and to escape are characteristic behavior of persons engaged in the narcotics traffic.

(internal quotation marks and citations omitted). See People v. Bennett, 17 Cal.4th 373, 70 Cal.Rptr.2d 850, 949 P.2d 947, 954-55 (Cal.1998); 3 LaFave, supra, § 6 .5(b).

¶13 Second, the exigency should not be one improperly created by law enforcement officers. See United States v. Rosselli, 506 F.2d 627, 630 (7th Cir.1974) (Stevens, J.); 3 LaFave, supra, § 6 .5(b), at 348-50. In particular, courts will not permit a warrantless entry if it appears that the officers have organized their conduct for the purpose of creating an exigency that presumably would justify a warrantless entry. See United States v. Socey, 846 F.2d 1439, 1448-49 (D.C.Cir.1988); United States v. Howard, 106 F.3d 70, 78 (5th Cir.1997).

¶14 Third, any intrusion by law enforcement officers should minimize the imposition on privacy and possessory interests protected by the Fourth Amendment. See Socey, 846 F.2d at 1448; United States v. Aquino, 836 F.2d 1268, 1271 (10th Cir.1988). Accordingly, officers should ordinarily limit themselves to taking steps to prevent the destruction or removal of evidence rather...

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