State v. Duran

• Decision Date: 09 March 2007
• Docket Number: No. 20051070.,20051070.
• Citation: 156 P.3d 795,2007 UT 23
• Parties: STATE of Utah, Plaintiff and Petitioner, v. Bernadette DURAN, Defendant and Respondent.
• Court: Utah Supreme Court

156 P.3d 795

2007 UT 23

STATE of Utah, Plaintiff and Petitioner, v. Bernadette DURAN, Defendant and Respondent.

No. 20051070.

Supreme Court of Utah.

March 9, 2007.

Mark L. Shurtleff, Att'y Gen., Jeanne B. Inouye, Asst. Att'y Gen., Salt Lake City, Gene E. Strate, Price, for plaintiff.

Samuel S. Bailey, Price, for defendant.

On Certiorari to the Utah Court of Appeals

NEHRING, Justice:

¶ 1 The issue presented in this case is whether the detectable odor of burning marijuana creates an exigent circumstance permitting a warrantless search of a residence. We hold that it does not.

BACKGROUND

¶ 2 This case presents a purely legal issue. Our recounting of the facts is therefore spare. On April 22, 2003, the brother and the mother of Lance Horvath called police officers to report that people were smoking marijuana inside Mr. Horvath's trailer, which was located on his mother's property. When officers arrived about forty minutes later, the brother reported that he had personally observed people in the trailer smoking marijuana and warned that, although Mr. Horvath was away at the time, he kept guns in his trailer and had threatened to use them against the police.

¶ 3 The police officers later testified that as they approached the trailer, they could smell the faint but unmistakable odor of "marijuana leakin' out of the cracks of the trailer." Concluding that time was of the essence because the occupants were "in the very process of smokin' up the evidence," the officers entered the trailer without first obtaining a warrant. Inside the trailer, the officers found controlled substances, several firearms, and three individuals, including the defendant, Bernadette Duran.

¶ 4 At trial, the court denied Ms. Duran's motion to suppress the evidence found in the warrantless search. The court of appeals reversed, holding that although the odor of marijuana to which the officers testified gave rise to probable cause for a search, it did not create exigent circumstances that would justify their warrantless search of the trailer. State v. Duran, 2005 UT App 409, ¶ 23, 131 P.3d 246.

ANALYSIS

¶ 5 On certiorari, we review the decision of the court of appeals, not that of the trial court. State v. Krukowski, 2004 UT 94, ¶ 10, 100 P.3d 1222. The issue of whether a warrantless search of a residence is reasonable under the Fourth Amendment is a question of law, which we review for correctness. See State v. Peterson, 2005 UT 17, ¶ 8, 110 P.3d 699.

¶ 6 We decline to grant the aroma of burning marijuana a place on an exclusive, limited roster of exceptions to the requirement that a warrant be secured before a lawful search can occur. The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their . . . houses . . . against unreasonable searches and seizures." As the United States Supreme Court has stated, "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." United States v. U.S. Dist. Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Accordingly, "searches and seizures inside a home without a warrant are presumptively unreasonable," even when officers have probable cause to search. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).

¶ 7 The Supreme Court has recognized, however, a few narrow exceptions to this warrant requirement. Under the exigent circumstances exception, officers may search a residence without a warrant where a "specially pressing or urgent law enforcement need," Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001), makes "the warrantless search . . . objectively reasonable under the Fourth Amendment," Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). The Court has identified prevention of the "imminent destruction of evidence" as one such pressing need. Minnesota v. Olson, 495 U.S. 91, 100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990).

¶ 8 We, too, have "sustained warrantless entries where the circumstances indicated that evidence might be destroyed or removed if entry was delayed until a warrant could be obtained." State v. Ashe, 745 P.2d 1255, 1258 (Utah 1987). To be clear, this does not include "the mere possibility that evidence may be destroyed." State v. South, 885 P.2d 795, 800 (Utah Ct.App.1994), rev'd on other grounds, 924 P.2d 354 (Utah 1996). Rather, police officers must have a reasonable belief that the destruction of evidence is sufficiently certain as to justify a warrantless entry based on exigent circumstances. We find, however, that the detectable odor of burning marijuana is inadequate, standing alone, to support such a reasonable belief. The aroma of burning marijuana must be accompanied by some evidence that the suspects are disposing of the evidence, as opposed to casually consuming it, before law enforcement officials may be lawfully justified in claiming the benefit of the exigent circumstances exception.

¶ 9 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, 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. at 1511; see, e.g., United States v. Elkins, 300 F.3d 638, 656-57 (6th Cir.2002); United States v. Davis, 170 F.Supp.2d 1234, 1239 (M.D.Fla.2001).

¶ 10 A person bent on destroying contraband may well turn to ingesting it to avoid its detection. See State v. Alverez, 2006 UT 61, 147 P.3d 425. It is nevertheless unlikely that a person in possession of contraband, like marijuana, would be so consumed by paranoia as to dispose of the contraband by ingestion, having no reason to suspect that law enforcement might be alerted to the illegal activities. We are unable, therefore, to identify the existence of an exigency under circumstances that require equating the consumption of contraband with destruction of evidence where the persons affected by the search had no apprehension that law enforcement had them in their sights.

¶ 11 In this case, Ms. Duran made no effort, hurried or otherwise, to dispose of her marijuana in order to prevent its discovery by law enforcement. Until the warrantless entry of law enforcement officers into the trailer, she remained unaware of any police involvement and had no objective reason to "destroy" the marijuana, as that term is commonly understood. In fact, it is likely that no one involved in this episode was more dismayed at the prospect of the destruction of "evidence" than Ms. Duran.

¶ 12 Further, nothing in the record suggests that law enforcement had reason to believe that the evidence of drug use would be destroyed if the officers had delayed their intrusion until they secured a warrant. Because Ms. Duran was unaware of the police presence, it is unlikely that all traces of her drug use would have disappeared from the trailer in the time it took law enforcement to obtain a warrant. Presumably, even if some of the marijuana was destroyed through the process of smoking while law enforcement sought a warrant, some evidence of drug use would linger in the form of residue, smoking paraphernalia, and some quantity of unsmoked marijuana. The officer's statement that Ms. Duran was "smokin' up the evidence" nicely underscores the obvious conclusion that the officers were not confronting the conflagration of the contraband that a reasonable person would associate with the destruction of evidence.

¶ 13 We also decline to sanction the warrantless search in this context because we fear that it would be difficult to leash warrantless searches in other contexts in which consumption and destruction of evidence merge. It is certainly not far-fetched to envision law enforcement officers exploiting the rationale that consumption of contraband is also evidence destruction to justify warrantless searches in other contexts. After all, the exigency present here is not appreciably different from a report of consumption of alcohol by underage persons in a dwelling. Like smoking marijuana, underage drinking is a jailable offense crime in which the criminal act involves simultaneous consumption of contraband and destruction of evidence. See Utah Code Ann. §§ 32A-12-104, -209(1) (2005). Also, olfactory-based probable cause could, under a doctrine that equated consumption of contraband with destruction of evidence, permit a law enforcement officer to claim exigent circumstances to justify a warrantless search to apprehend eighteen-year-olds believed to be smoking tobacco. See Utah Code Ann. § 76-10-105 (2006) ("Any 18 year old person who buys or attempts to buy, accepts, or has in his possession any cigar, cigarette, or tobacco in any form is guilty of a class C misdemeanor. . . .").

¶ 14 In short, the costs that would accompany a merger of consumption of...