State v. Curl

• Decision Date: 01 September 1993
• Docket Number: 19538,Nos. 19499,s. 19499
• Citation: 125 Idaho 224,869 P.2d 224
• Parties: STATE of Idaho, Plaintiff-Appellant, v. Jackie Carl CURL, Defendant-Respondent. STATE of Idaho, Plaintiff-Appellant, v. Kimberly J. McCURDY, Defendant-Respondent. North Idaho, May 1993 Term
• Court: Idaho Supreme Court

Page 224

869 P.2d 224

125 Idaho 224

STATE of Idaho, Plaintiff-Appellant, v. Jackie Carl CURL, Defendant-Respondent.

STATE of Idaho, Plaintiff-Appellant, v. Kimberly J. McCURDY, Defendant-Respondent.

Nos. 19499, 19538.

Supreme Court of Idaho,

North Idaho, May 1993 Term.

Sept. 1, 1993.

Larry EchoHawk, Atty. Gen., and Thomas P. Watkins, Deputy Atty. Gen., Boise, for appellant. Thomas P. Watkins argued.

Gregory A. Jones, Kootenai County Public Defender, Coeur d'Alene, for respondents.

BISTLINE, Justice.

This case requires us to determine whether the threat of destruction of evidence in connection with the offense of possession of marijuana constitutes exigent circumstances sufficient to overcome the Fourth Amendment's general prohibition against warrantless residential searches.

BACKGROUND AND PRIOR PROCEEDINGS

Officer Gerald Evensizer entered an apartment building to serve an arrest warrant on a second floor resident. He observed respondent Jackie Carl Curl exit from another apartment on the second floor, followed by a puff of white smoke emanating from the interior of the apartment. Evensizer believed that the odor coming from that apartment was that of freshly burning marijuana.

Curl walked down the hallway toward Evensizer. When Curl approached within ten feet and saw the officer, he stopped abruptly, hesitated for a moment, spun around, and ran back to the apartment from which he had left. Evensizer ran after Curl, identified himself as a police officer, paused briefly, pushed the door open, and entered the apartment. Several people were inside, including Curl and respondent Kimberly J. McCurdy. Evensizer seized certain evidence and cited Curl and McCurdy with possession of marijuana, in violation of I.C. § 37-2732(c)(2), and possession of drug paraphernalia, in violation of I.C. § 37-2734A(1), both misdemeanors.

Curl and McCurdy filed motions to suppress all evidence obtained after Evensizer The magistrate found that the threat of destruction of evidence was present but then found that in light of the fact that Curl and McCurdy were charged with misdemeanors, the State had not carried its burden of demonstrating exigent circumstances necessary to justify a warrantless residential entry.

[125 Idaho 225] entered the apartment, contending that the entry was illegal. A hearing was held, in which Evensizer testified that he was experienced in identifying marijuana and that based upon his training and experience, he was concerned that the evidence would be destroyed if he waited to get a warrant.

The State of Idaho appealed the magistrate's decision to the district court, which affirmed. The State then appealed to this Court.

DISCUSSION

The issue presented on appeal is whether Evensizer's warrantless entry into a private residence violated the Fourth Amendment of the United States Constitution. More specifically, the question is whether the State sustained its burden of justifying a warrantless entry into a residence by demonstrating probable cause coupled with exigent circumstances. As discussed below, we conclude that the possibility of destruction of evidence is not sufficiently exigent when the underlying crime charged is of a non-violent nature. We accordingly affirm the magistrate court and in turn the district court.

Any analysis of an officer's warrantless entry into a private dwelling must begin with the recognition that a warrantless entry into a private residence is presumptively prohibited by the Fourth Amendment. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed.2d 639 (1980); Welsh v. Wisconsin, 466 U.S. 740, 749, 104 S.Ct. 2091, 2097, 80 L.Ed.2d 732 (1984). This presumption is a strong one. Welsh, 466 U.S. at 749-750, 104 S.Ct. at 2097 ("[T]he police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests."). The only manner in which the government can justify such an entry is to show that the entry was based upon probable cause and that exigent circumstances existed necessitating immediate police action. Payton, 445 U.S. 573, 100 S.Ct. 1371 (1983). There can be no question that the exception does not swallow the rule--exceptions to the warrant requirement for home entries are "few in number and carefully delineated.... Indeed, the [United States Supreme] Court has recognized only a few such emergency conditions." Welsh, 466 U.S. at 750, 104 S.Ct. at 2097; see also State v. Wren, 115 Idaho 618, 622, 768 P.2d 1351, 1355 (Ct.App.1989).

With the above United States Supreme Court pronouncements firmly in mind, we turn to an analysis of the State's arguments. The State contends that the magistrate court erred by relying too heavily upon the fact that the offense underlying the officer's entry and subsequent search of the room, marijuana possession, was a misdemeanor. We must thus examine the role that the severity of the underlying offense plays in determining whether sufficient exigent circumstances exist to justify a warrantless residential entry.

There is no question but that the severity of the offense which the officer believes to be in progress, when he concludes a warrantless entry is justified, is a factor to be given considerable weight when contemplating the existence and extent of exigent circumstances. ¹ In Welsh, the United States Supreme Court held that because the offense underlying the warrantless residential entry (there consisting of driving under the influence, then an infraction in Wisconsin) was a "relatively minor" one, the presumption of unconstitutionality was not overcome merely by the threat of destruction of evidence. The unescapable conclusion that we must draw from Welsh is that if an offense falls within the category of "relatively minor" offenses, 466 U.S. at 750, 104 S.Ct. at 2098, the fact that the defendant will almost certainly destroy the relevant evidence is simply not enough of an exigency to justify a warrantless entry into the home. As the Welsh Court declared, "When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate." 466 U.S. at 750, 104 S.Ct. at 2098 (footnote omitted).

The question next becomes, what constitutes a "relatively minor" offense. Both the State and the defense recognize the need for some sort of bright-line test that law enforcement officers may apply when deciding whether to enter a residence without a warrant. The Welsh Court somewhat suggests, but stops short of declaring, that the line should be drawn between felonies and misdemeanors or other lesser charges. ² Moreover, several state courts appear to have applied such a distinction. ³ See, e.g., State v. Ramirez, 49 Wash.App. 814, 746 P.2d 344 (1987) (possession of marijuana).

We are in accordance with the State's argument that the distinction between felonies and misdemeanors is not the desired distinction for several reasons. It is often difficult for an officer to determine whether the underlying offense is a felony or misdemeanor. For instance, in the case sub judice, had Curl and McCurdy possessed more than three ounces of marijuana, this possession would have amounted to a felony. Moreover, while it is perfectly within the legislature's right to determine at what point an offense becomes a felony, drawing a distinction between three and four ounces does not make much sense when it comes to determining whether sufficient exigency exists.

A more workable distinction as to the gravity of the offense factor is between violent and non-violent offenses. This distinction finds its roots in Justice Jackson's concurrence in McDonald v. United States, 335 U.S. 451, 459-60, 69 S.Ct. 191, 195, 93 L.Ed. 153 (1948), which was quoted with approval in Welsh:

Whether there is reasonable necessity for a search without waiting to obtain a warrant certainly depends somewhat upon the gravity of the offense thought to be in progress as well as...