One of the great curiosities of search and seizure law had long been the assumption that if a police officer knocked on the door of a place thought have drugs inside and announced he was a cop, that alone would create an exigent circumstance sufficient for the police to burst in without a warrant.  The rationale was simple, that whoever was inside would destroy the evidence before a warrant could be obtained.

Flush. Drugs gone. Nothing to see here, officer.

What made it curious was that exigent circumstances, if any, were created by the actions of the police. It was their knock, their announce, that started the assumed chain of events in motion that justified ignoring the warrant clause.  Nice work if you can get it.

But the Texas Court of Criminal Appeals, of all courts, held that this will no longer be tolerated.  Via John Wesley Hall’s Fourth Amendment Blog , the CCA held in Turrubiate v. State  that even if officers smell pot outside the door, they can’t presume their knock and announce to create exigent circumstances.

Nothing in King supports the State’s contention that a police officer who has probable cause to believe that there are illegal narcotics in a home may enter that home without a warrant after he has identified himself as an officer and made his presence known to the occupant if there is a noticeable odor of marijuana emanating from the home. The State’s approach would abandon the requirement that the record affirmatively show facts that reasonably indicate exigent circumstances that a defendant was attempting to, or would attempt to, destroy evidence, a requirement vital to the Supreme Court’s holding in King. 

The State’s interpretation would permit a presumption that an occupant will attempt to destroy illegal narcotics merely because he possesses them and is aware of the presence of police, and there is an odor of marijuana. The State’s proposed approach is ultimately premised upon generalizations regarding the behavior of individuals who are in possession of illegal narcotics, namely, that they will take immediate action to destroy evidence if the police are at their door and an odor of marijuana fumes is present. (Internal cites omitted, and paragraph break added.)

Is it fair to presume that given the option of holding marijuana, while the cops are off getting a warrant, so that the evidence is preserved or flushing the drugs down the toilet, the latter is probable?  The Court says not enough to do away with the need for a warrant.

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.

While the examples may be fair, it’s quite shocking for a court to embrace the fact that the presumed norm doesn’t eviscerate the requirement for a warrant.  Of course, it may be that this is based on the fact that we’re talking about a person’s home, which has long been given greater protection than any other place, and this is Texas, where the sanctity of the home is particularly strong.

One member of the CCA, Presiding Judge Sharon “Killer” Keller, found the holding unacceptable.  She wrote in dissent:

If there is no reason for the occupant of the home to believe that an officer would be aware of illegal activity, exigent circumstances are not established because there is little to no risk that the contraband will be destroyed. The examples the Court gives to support its point, however, are distinguishable from a situation like the one in the instant case because, unlike in those examples, here there was a “very, very strong smell of marijuana coming from the home,” which was testified to by both Lopez and Deputy Chavarria. On this record–where Lopez returned within an hour with a police officer, and both Lopez and Deputy Chavarria immediately smelled a very strong odor of marijuana–it was reasonable for the deputy to believe that appellant knew that the deputy was aware of his marijuana possession. Thus, Deputy Chavarria’s belief that destruction of the contraband was imminent, and that he needed to act quickly to prevent its destruction, was reasonable. Therefore, the evidence in this case supported the trial court’s ruling.

Of course, the majority opinion acknowledged that the officers claimed that there was a strong smell of marijuana, as compared with Keller’s “very, very strong smell,” and even in Texas, adding two “verys” creates a substantive change in the fact pattern, as in “very, very guilty” being a good reason to close the courthouse doors at five o’clock.

Despite her laser-like olfactory focus, the majority didn’t deny that the assumption that the occupants might destroy the evidence to be unreasonable, but rather that it could not be presumed for the purpose of excepting the warrantless search from the 4th Amendment.

But the majority’s admonition is worth remembering:

When law enforcement officers who are not armed with a warrant knock on a door, they do no more than any private citizen might do. And whether the person who knocks on the door and requests the opportunity to speak is a police officer or a private citizen, the occupant has no obligation to open the door or to speak. And even if an occupant chooses to open the door and speak with the officers, the occupant need not allow the officers to enter the premises and may refuse to answer any questions at any time. Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.

So even if the police can no longer presume that the occupants will flush the drugs down the toilet to evade the seizure of evidence, failing to destroy evidence and standing on one’s constitutional rights remains a game of chance.