Marijuana And Your Home

MARIJUANA & YOUR HOME

Home Is Entitled to Maximum protection

Tthe Supreme Court has held that a •erson is reasonably entitled to the highest degree of privacy when inside his or er home. An excerpt from a recent opinion by the Court makes it very clear that ic Court is prepared to severely scrutinize all searches and seizures that occur tiside a person\'s home:

The Fourth Amendment protects the individual\'s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual\'s home—a zone that finds its roots in clear and specific constitutional terms: "The right of the people to be secure in their... houses ... shall not be violated." That language unequivocally establishes the proposition that "[a]t the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion." In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance of the house.

Because the home is considered a person\'s most private retreat, the United itates Supreme Court made clear long ago that even if an officer has probable :ause to believe that marijuana is inside, he may not enter the home without first (btaining a search warrant. As the Court explained, "the search of a private Iwelling without a warrant is, in itself, unreasonable and abhorrent to our laws . . Belief, however well founded, that an article sought is concealed in a dwelling louse, furnishes no justification for a search of that place without a warrant. Any ,uch searches are held unlawful notwithstanding facts unquestionably showing >robable cause." (Agnello v. United States [1925] 269 U.S. 20.)

Given the very strong right to privacy that is compromised when police search a home, the Court has made clear that the only exceptions to the search warrant requirement are: (1) when exigent circumstances exist, or (2) when the occupant consents.

A Home\'s Outdoor Private Areas Also Receive Maximum Protection

In addition to cloaking the interior of your home with a great deal of protection against the prying eyes and grabbing hands of the government, the courts have developed the legal concept of a home\'s "curtilage." The term \'curtilage\' refers to those areas immediately surrounding the home that most people consider to be just as private as the interior of their home. This concept was created to afford those areas the same level of protection as the inside of a home. Because mosl curtilage issues discussed in this book involve Cannabis gardens, the details oi what is and isn\'t considered part of a home\'s curtilage are discussed in the nexl chapter. For now, you need only understand that all the rules in this chapter thai apply to the home itself also apply to the home\'s curtilage .

The Front Door is Usually Not Part Of Curtilage

At least one court has made clear that unless rather extraordinary precautions are taken to keep strangers at a distance, the front door of a home is not within the home\'s curtilage. This case holds that without a locked gate keeping people from approaching your front door, and signs stating that they are trespassing by encroaching on your doorstep, a police officer does not need a warrant to approach your front door and knock on it. The rationale for this rule is thai although a front door is an integral part of a home, it is widely accepted foi strangers to approach it. Distinguishing a home\'s front door from it\'s back dooi (which is generally considered to be within the home\'s curtilage and hence entitled to increased protection), an Oregon court explained:

Going to the front door and knocking [is] not a trespass. Drivers who run out of gas, Girl Scouts selling cookies, and political candidates all go to front doors of residences on a more or less regular basis. Doing so is so common in this society that, unless there are posted warnings, a fence, a moat filled with crocodiles, or other evidence of a desire to exclude casual visitors, the person living in the house has implicitly consented to the intrusion ... Going to the back of a house is a different matter. Such an action is both less common and less acceptable in our society. There is no implied consent for a stranger to do so. (State v. Mcintyre [Or. App. 1993] 860 P.2d 299.)

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The Oregon court was not being overly facetious when it mentioned placing a crocodile-filled moat around your home. Access to the front door of the home at issue in this case was protected by a tall wooden fence and a metal gate crossing the driveway. The court claimed, however, that these constructions are not sufficient to signal that the resident expected privacy because neither the fence nor the gate were locked and because there were no signs telling strangers to keep out.

Human Sniff At Garage Door

In one case in 1993, the Texas Court of Appeals in Houston upheld a police officer\'s marijuana-detecting sniff outside Roberta Delosreyes, Jr\'s, home. In court, the officer testified that when he arrived at Roberta\'s house, he walked up to the garage area "to see if I could detect any smell of any drugs." He sniffed by the edge of the garage door and supposedly detected the aroma of "unburned, fresh marijuana." This sniff, coupled with evidence from a "reliable informant" that Roberta had received a large delivery of marijuana, gave police officers probable cause to arrest Roberta.

Following his arrest, Roberta consented to the search of his garage and the officers found 71 packages of marijuana, totaling over 900 pounds. He was sentenced to 75 years in prison and fined $100,000.

In his appeal, Roberto argued that the officer\'s sniff at the garage door was an unlawful warrantless search because the sniff violated Roberto\'s reasonable expectation of privacy for the contents of his closed garage.

The court of appeal rejected his argument. The court explained that when the officer approached the garage he walked only on the driveway, and nothing blocked his passage. For example, there was no fence or any other obstruction around the residence or across the end of the driveway. There also were no signs prohibiting people from walking on the driveway. The driveway led to the front door of the house and the garage. In short, there were no fences, gates, signs or other notices to the public that the driveway leading to the garage was not open to the public. For these reasons, the garage door did not qualify as part of the home\'s curtilage. Therefore, the court explained, the officer had a right to walk up near the garage just like any other person. Moreover, there was no reason for the officer to hold his nose. He was free to smell the area, just like any other passerby. (Delosreyes v. State (TexApp. Houston [1st Dist. 1993] 853 S.W.2d 684.)

Search Warrants

As discussed earlier, a search conducted under the authorization of a search warrant is presumed to be reasonable and hence legal. The method of obtaining a search warrant is relatively straightforward. A police officer simply writes out an affidavit explaining to a judge why he has probable cause to believe that a search of a particular place will produce marijuana. If the judge is persuaded by the officer\'s affidavit, he will sign the warrant and the officer will be authorized to conduct the search.

The purpose of requiring a search warrant is to take some power away from the police and vest it in a neutral judge. In one case, Judge Green in California received information that his tenant was cultivating Cannabis on his property. The judge investigated and confirmed that 15 Cannabis plants were growing on his rental property. He took Polaroid pictures of the plants and immediately notified the police. The police officer who received the information prepared an affidavit for a search warrant and brought it back to Judge Green, who quickly signed the search warrant authorizing the officer to search the Judge\'s rental premises and to seize the Cannabis plants. A higher court held that the search warrant issued by Judge Green was invalid because the judge, as the owner of the targeted property, was anything but a "neutral and detached magistrate" as required by the Fourth Amendment. (Grimes v. Superior Court [1981] 120 CalApp.3d582.)

Not only must the judge be neutral, but he or she, as opposed to the police officer, must be the one who concludes that probable cause exists for the search. For that reason, a police officer\'s affidavit must not simply state conclusions. Rather, the officer must present facts that allow the judge to conclude that marijuana will be found in the place to be searched. Search warrants are often attacked by defense counsel for having invalid affidavits which state only the officer\'s conclusions rather than facts.

There is a great deal of law governing search warrants. However, only a few key points are relevant to the person who hears a knock at his or her door accompanied by the bone-chilling words, "Police officers, we have a search warrant."

If you or your home are the target of police officers with a search warrant, the following scenario will likely be played out. First, the officers will knock on your door and announce their identity as police officers; they will also announce their purpose, such as "narcotics" or simply "search warrant." Immediately upon entry they will run from room to room and, at least initially, bring all the occupants together in one room. One officer will usually show the search warrant to the homeowner and then begin a thorough search of the premises.

There is not much you can do if police arrive at your home with a search warrant. The best thing to do in such a situation is to take several deep breaths and try to remain calm. Do not admit anything. Ask to see the search warrant and check it to see if your correct address is listed. Occasionally, sloppy police work will result in an error on the face of the warrant. If you discover such an error, immediately bring it to the attention of the officer in charge and demand that he or she immediately stop searching and leave your premises. You should also check to confirm that it has been signed by a judge. Again, if no signature appears, bring this fact to the attention of one of the officers and demand that they stop searching and leave your home.

Again, aside from checking the validity of the warrant and demanding an attorney, the best advice in such a situation is to remain silent. Do not admit anything and do not answer questions.

If It\'s Nighttime You\'re Probably Safe

Under the laws of most states, search warrants may be executed only during daylight hours. In these states, an officer may execute a search warrant at night only if the warrant contains a specific clause that authorizes a nighttime search. Such clauses are rare. The general rule is that a judge can authorize a nighttime execution of a search warrant only if he is presented with facts that indicate a nighttime execution is required to prevent the removal or destruction of evidence.

A recent Arkansas case illustrates this rule in operation. Arkansas law enforcement agents received evidence that Elmer Ramey was selling marijuana out of his home. The officers conducted "surveillance activities" around Ramey\' s home for approximately two months during which time they observed a pattern of activity they believed indicative of drug dealing. One day, after observing a suspected deal, the officers stopped the buyer and seized a baggie of marijuana which the man said he purchased from Ramey\'s nephew.

With this information, the officers obtained a search warrant for Ramey\'s home and, with warrant in hand, rushed over to Ramey\'s home. They arrived at about 10:30 p.m. and searched his home. The search uncovered a relatively small amount of marijuana, over $3,000 cash, a scale, and some rolling papers.

Ramey was convicted on numerous charges, including: delivery of a controlled substance; possession of a controlled substance with intent to deliver; possession of drug paraphernalia; operating a drug premises; and conspiracy to deliver marijuana. He was sentenced to 39 years in state prison, with 15 years suspended.

His conviction, however, was reversed in 1993 because of the officers\' unauthorized nighttime execution of the search warrant. Under Arkansas law, search warrants can only be executed between 6 a.m. and 8 p.m., unless the warrant affidavit sets out facts showing reasonable cause to believe that unusual circumstances exist to justify a nighttime search. The Arkansas Court of Appeals noted, "the nighttime intrusion into a private home is a violation of an important interest." After examining the search warrant affidavit, the court determined that the affidavit failed to state any facts showing that a nighttime search was justified. Consequently, the court concluded that the evidence seized as a result of the intrusion should have been suppressed, and hence, Ramey\'s conviction had to be reversed. (Ramey v. State [ArkApp. 1993] 857 S.W.2d 828.)

Some courts, faced with an unauthorized nighttime search, use an "exigent circumstances" rationale to justify the search. For example, in one case in Vermont, police arrested a man who was cultivating Cannabis on public property. There was sufficient evidence to establish probable cause that more evidence would be found in the man\'s home, and a judge issued a search warrant. The warrant was signed by the judge at 10:00 p.m. and authorized the search "at any time." The officers arrived at the man\'s empty home at 1:00 a.m., entered the home pursuant to the search warrant, and found additional incriminating evidence.

The man argued that it was illegal for the officers to execute the search warrant after nightfall. He cited Vermont law, which explicitly states, "the warrant shall be served between the hours of 6:00 a.m. and 10:00 p.m. unless the warrant directs that it may be served at any time." He noted that the Vermont courts had interpreted this law as justifying a nighttime search only when evidence exists that unless the warrant is executed at night, there will be a danger that the evidence sought will be destroyed or hidden. He argued that there was no danger of destruction of evidence because he was in jail at the time the search warrant was executed, and so could not possibly have destroyed evidence located at his home

The Vermont Supreme Court rejected the man\'s argument. The court explained that although the man was in jail when the search warrant was obtained and executed, he was married. Therefore, an exigent circumstance existed permitting the nighttime execution of the warrant at his home:

The very real possibility existed that appellant\'s fate had become known or would become known before the night was over, and that this would prompt removal of the incriminating evidence by others. The judicial officer [who authorized the nighttime search] knew from the affidavits that [the appellant] had a wife. He could have reasonably concluded that the spouse might upon learning of her husband\'s apprehension seek to destroy any incriminating evidence and that an immediate search was warranted. (State v. Weiss [VT 1990] 587 A.2d 73.)

Consequently, the Vermont Supreme Court upheld the warrant\'s nighttime execution as well as the man\'s conviction for cultivating Cannabis.

The Knock-Notice Rule

Even with a warrant, a police officer may not enter a person\'s home without first knocking and announcing his presence. This is known as the "knock-notice rule." Under this rule an officer executing a search warrant for a residence must knock on the door of the residence to be searched, and give notice that he is a police officer. The officer must also give the occupants a reasonable amount of time to open the door. If no person answers, or the officer hears rustling inside that might indicate that the people are getting weapons or disposing of contraband, he may immediately enter the home by force.

In many states, when a warrant is issued to search a residence believed to contain marijuana or other drugs, courts will routinely authorize the officers to execute the warrant without first knocking and giving notice of their search because to do so might give the occupants time to flush marijuana down the toilet or arming themselves. These courts, however, usually require that the search warrant affidavit include some factual basis for believing that notice to the occupants would result in them destroying the marijuana, arming themselves, or escaping.

Warrants and the Plain-View Rule

The plain-view rule is not as simple as its name suggests. Remember, what is or is not in plain view depends upon the position of the viewer (i.e., the police officer). Ordinarily, a baggie of marijuana inside a desk drawer is not in plain view. However, if a police officer has a right to open the drawer (e.g., he has a search warrant or your consent) its contents are suddenly in plain view. This aspect of the plain view rule often comes into play when officers search a home under the aegis of a search warrant. If police officers are legally searching a home pursuant to a warrant, they may seize any illegal items which they find while searching, so long as the criminal nature of the items is immediately apparent. If, for example, a search warrant authorizes a search for marijuana and during that search the officers find some cocaine, they may seize the cocaine because it is clearly illegal. Likewise, if a search warrant authorizes a search for a gun, and the officers find marijuana while searching, they may legally seize the marijuana.

People on the Scene

What about visitors who happen to be present when the police unexpectedly arrive with a search warrant? Can the police search them? In most situations the answer is "no." In most states the officers are restricted to searching only those persons or places specifically listed in the warrant. In most cases, a search warrant authorizes the search of only named individuals who reside at the residence to be searched. In such cases, the police can not search other people who happen to be present when the police execute the search warrant. The police can, however, detain and frisk all persons present, but only for the purpose of detecting weapons, not for the purpose of finding contraband.

Occasionally, the police will have information leading them to believe that a particular home is used exclusively for growing or "manufacturing" marijuana. In such cases, some courts will permit the search warrant to contain a rather general authorization permitting the police to search "any or all persons on the premises." Of course, the police can also search any person who consents to a search.

Police can also search a visitor who is not named in the search warrant if, during the search, an officer uncovers evidence establishing probable cause to believe that the visitor is concealing contraband or involved in unlawful activity. In this case, the officer can arrest that person and search him or her incident to arrest.

For example, in one case, Mary Lou was visiting her friends Bob and Larry at their penthouse apartment. As they spoke, they were suddenly interrupted by a loud pounding at the door. Thinking it must be another friend, Bob yelled out, "Come in, it\' s open." At that moment the door flew open, and five police officers ran into the apartment. The officers ordered them to get on the ground with their hands out to their sides.

The three followed the officers\' orders and hit the ground. The officers quickly ran through the apartment to check for other occupants. One officer advised Larry and Bob that he had a search warrant for their apartment authorizing a search for marijuana and evidence of its sale. Because Bob and Larry were listed in the search warrant, the officers searched their pockets, finding a half-smoked joint and $350 in Bob\'s possession. The officer confiscated the joint and the money. The officers found nothing on Larry. Last, the officers pat-searched Mary Lou but felt no hard objects.

Inside Bob\'s bedroom, the officers found 13 vacuum-packed ounces of marijuana. Inside Larry\'s room, the officers found a professional-quality scale, $950 in cash, and a well-used vacuum-packaging machine. The officers confronted Bob and Larry with their discoveries, but the two men remained silent.

As the search warrant authorized, the officers checked the apartment for a telephone answering machine and found one in the kitchen. They played back the last message and heard a female voice leave the message, "Hey, you guys, it\'s Friday 3:00 p.m. If it\'s O.K., I\'ll drop by around 5:00 p.m. with the money. I really need the stuff for the weekend. See you later." The officers checked their watches. It was 5:20 p.m. on Friday. Putting these facts together, the officers confronted Mary Lou, and asked her if she left a message. Mary Lou refused to answer. One of the officers then grabbed Mary Lou\'s jacket and searched inside its pockets. Inside the left pocket he found a vacuum-packed ounce of marijuana very similar to the 13 recovered in Bob\'s room. The officers then arrested Mary Lou, Bob, and Larry.

Mary Lou\'s attorney argued that the officer\'s search of Mary Lou\'s jacket was illegal, because she was not named in the search warrant, and did not even live at the apartment. The court rejected the argument. The court reasoned that the tape-recorded message in a female voice, the time correspondence between the message and Mary Lou\'s presence at the apartment, and the $350 found on Bob, all combined to give the officers probable cause to believe that Mary Lou had just purchased marijuana from the two men and was currently in possession of the marijuana. Therefore the court held that the officers\' search of Mary Lou was legal, despite the fact that she was a visitor to the apartment and was not listed in the search warrant.

If It\'s Your Home, It\'s Presumed to Be Your Marijuana

In situations where officers execute a search warrant and find several visitors at the home, as well as some marijuana, the question often arises as to whether the visitors can be convicted of possessing the marijuana merely because they were at the premises. If the police find a resident and a nonresident in a room in which concealed marijuana is also found, the resident will be presumed to be the one in possession of the marijuana. The visitor can still be convicted of possessing the marijuana, but the prosecution must present evidence linking the visitor to the marijuana as well as establishing the other necessary elements of the crime of possession.

As a general rule, any concealed marijuana found on premises which you control is presumed to be in your possession. (You may be able to disprove or rebut that presumption if you can show facts which indicate that either you were not aware of the marijuana\'s presence or had no control over it.) This rule makes sense because, as the owner or renter of a room, you have the most control over the items concealed in the room.

In one case, the police entered a home pursuant to a search warrant and found a visitor and the homeowner in the bedroom. Underneath a chair on which the visitor was sitting, the officers found marijuana. The court held that in such circumstances there was insufficient evidence to convict the visitor of possession. The court stated:

Where a person is present in premises where marijuana is found, but does not have exclusive access, use or possession of the premises, it may not be inferred that he had knowledge of the presence of marijuana and had control of it unless there are additional independent factors showing his knowledge and control.

Most courts agree with the above quote, and require more than a visitor\'s mere presence to convict him or her of possessing marijuana found concealed on someone else\'s premises. A case from Texas gives a good example of the sort of additional evidence needed to convict a visitor in such a situation. In this case, police officers entered a home with a search warrant and found four people seated at a table playing cards. Approximately four feet from the table, the officers found a shoe box containing two bags of marijuana. In addition to the marijuana inside the box, the officers also found a letter addressed to one of the visiting card players. Although the player was a visitor to the residence, and although the marijuana was concealed from view, the court upheld the visitor\'s possession conviction on the reasoning that the letter linked him to the concealed marijuana.

One final note regarding visitors: if the police search a person\'s home and find marijuana concealed on the person of a visitor, the above rules work to protect binoculars, courts have found that no search occurred by reason of an officer\'s use of binoculars.

In one Oregon case, the state police received information that Chris Blacker was growing Cannabis in his home. In order to corroborate the informant\'s information, the police observed Mr. Slacker\'s home from a vantage point along a rural highway adjacent to Mr. Blacker\'s house. A state trooper parked along the highway an estimated 50 yards from Blacker\'s home. From that location, and with the aid of a spotting scope which magnified 16 to 36 times, the trooper examined the premises. Using the scope to look into a second story window of the home, the trooper saw what he recognized as a Cannabis plant. Based on these facts, he obtained a search warrant, searched Mr. B lacker\'s home and seized some plants.

Mr. Slacker\'s case was dismissed after the court ruled that the officer\'s use of the spotting scope violated Mr. Blacker\'s reasonable expectation of privacy, and hence constituted a search without a warrant. The court explained that the officer used the scope to intrude upon Mr. Blacker\'s home—a place which, as already discussed, receives the highest level of protection under the Constitution. Quoting from another case, the court pointed out:

The vice of telescopic viewing into the interior of a home is that it risks observation not only of what the householder should realize might be seen by unenhanced viewing, but also of intimate details of a person\' s private life which he legitimately expects will not be observed either by naked eye or enhanced vision.

The court was quick to point out that without the aid of scope, the officer would have been unable to see the Cannabis plant. The outcome would have been different if the plant was viewable with the naked eye. (State v. Blacker [OrApp. 1981] 630 P2d 413.)

In those cases where the courts find a search occurred by reason of an officer\'s warrantless use of binoculars, they must then determine whether or not the search was unreasonable and hence a violation of the Fourth Amendment. A New Jersey court analyzed the question as follows:

Is a "search" with the use of binoculars an invasion of one\'s privacy that society is prepared to accept without the necessity of obtaining a search warrant? We believe it is.

In an age where the possession and use of binoculars by the average citizen, as well as the police, is so common it is unreasonable for property owners to expect that objects within their curtilage not shielded by a fence or other barrier will not be observed by persons passing their home on the road or sidewalk . ..

The use of devices to enhance vision and other senses has been sanctioned in the past. For instance, eyeglasses enhance vision, yet no one can reasonably argue that observations made by a police officer wearing glasses constitutes an unreasonable search. Moreover,courts throughout the nation, including this state, accept without question the admissibility of electronically intercepted statements made by a defendant which he intended to remain private even when made in the privacy of one\'s home. The philosophy underlying the admissibility of such evidence is that those involved in illegal activities should anticipate the use by police of scientific devices commonly used by and available to the general public, and we should neither shield defendants from the risk that their illegal activities may be observed with the use of commonly used scientific devices, nor should we be too ready to erect constitutional barriers to relevant and probative evidence which is also accurate and reliable ....

Patently, binoculars are commonly used scientific devices and provide information which is accurate and reliable. (State v. Citta [NJ. 1990] 625 A.2d 1162.)

Another court upholding a police officer\'s warrantless use of binoculars to look through a person\'s window and observe what appeared to be a Cannabis plant, explained "the use of binoculars is not an unexpected occurrence in today\'s society. They are used, not only by law enforcement officers, but by citizens for hunting spotting game, bird watching and other ordinary, lawful purposes."

These cases are alarming for the Orwellian world that they could manifest. Any time a police officer uses a high-tech device, even binoculars, to obtain incriminating evidence without first obtaining a warrant, the action should be attacked as an unreasonable warrantless search, analogizing use of the device to use of an eavesdropping device.

Consenting to a Search of Your Home

How is it that, if most searches occur without warrants-and homes cannot be searched without warrants even if probable cause already exists-police find so much marijuana in people\'s homes? Well, the sad fact is that people, usually without thinking, invite the police into their homes. Simply stated, and as explained earlier, consenting to a police officer\'s request to enter or search automatically makes the entry or search legal. The courts reason that if you allow marijuana in your home.

police officer to come into your home and conduct a warrantless search, then you innot later argue that the warrantless search was an unreasonable invasion of our privacy. Moreover, unintentional consent is considered valid. For example, i one case, a police officer knocked on the door of a suspected marijuana user, rom inside came the response, "Yeah, come in." The officer walked in and nmediately saw a Cannabis plant on the kitchen floor. The court held that the ameowner\'s consent was valid, even though he was unaware that it was a police fficer who sought entry. The court noted that the officer did not make any audulent statements nor was the occupant under any duress when he consented i the entry. Therefore, the occupant\'s consent was voluntarily given, even lough he did not know that it was a police officer who sought entry.

Occasionally a police officer, suspecting a person of marijuana use, will go i the person\'s home in hopes of pressuring the person into consenting to the Fficer\'s entry into and search of the home. If the officer does this by making some ilse or misleading claim under the authority of his badge, courts hold that the :cupant\'s consent was invalid; hence the officer\'s entry and search are deemed legal. For example, the courts have routinely held that it is illegal for police officers to gain entry to a home by telling the occupant that they have a search arrant or arrest warrant when they actually do not. The trick used by the police officer in the following Illinois case was also found to invalidate the omeowner\' s 3nsent.

Richard Daughterly reported to the police that some money was missing from is home. A police officer was dispatched to the Daugherty household and made report of the apparent theft. A few days later, the parents of the Daugherty\'s iby-sitter called Mr. Daugherty to report that their daughter had taken the money ic night while baby-sitting. The police were notified of this information and aestioned the baby-sitter regarding the theft. During the questioning, the baby-tter volunteered that she had seen evidence of marijuana use while baby-sitting the Daugherty home.

Officer Baits of the local police department was given this information, and :t out to try to arrest Richard Daugherty for possession of marijuana. However, fficer Baits did not get a search warrant. Rather, several days after taking the formation from the baby-sitter, Officer Baits arrived unannounced at the augherty household, and asked for permission to come in, "to conduct further ispection regarding the theft." Daugherty\'s wife, Karen, consented to the rficer\' s entry for such purpose. Once Barts was inside the home, he began asking ^aren questions about the theft that were designed to get her to show him around _e home so he could look for marijuana.

The officer asked her to.show him the place from which the money had been iken. Next, he asked her to show him where else in the home the Daugherty\'s ept money. Just as the officer hoped, when Karen took him into the kitchen, larts saw some marijuana in plain view on the kitchen countertop. He seized the larijuana, arrested Karen and Robert Daugherty, and called for backup. Under ic pressure of the situation, the Daughertys confessed that more marijuana could be found in several places in the home. Robert Daugherty also turned over a scale and several pipes used to smoke marijuana.

Fortunately, the Daugherty\'s lawyer heard what happened and how Officer Barts tricked Karen into consenting to the officer\'s entry. The lawyer argued that the officer\'s warrantless entry was illegal, because Karen\'s consent was procured through a trick by Officer Barts under the authority of his badge.

The Illinois Court of Appeal found that Barts went to the Daugherty\'s residence to gain entry and search for evidence of marijuana use, and that the theft investigation was a subterfuge to trick Karen into consenting to his entry of the home. Therefore, the court agreed with the Daugherty\'s attorney and ordered the reversal of Richard Daugherty\'s conviction. (The charges against Karen had already been dropped.) The court explained that when a person gives consent to a police officer\'s warrantless entry of their home, the consent must be voluntarily given. The court reasoned:

Where, as here, the law-enforcement officer without a warrant uses his official position of authority and falsely claims that he has legitimate police business to conduct in order to gain consent to enter the premises when, in fact, his real reason is to search inside for evidence of a crime, we find that this deception under the circumstances is so unfair as to be coercive and renders the consent invalid. This police conduct offends the Fourth Amendment and is fundamentally unfair when compared with the need for effective police investigation. (People v. Daugherty [III. App.ld 1987] 514 NE.2d 228.)

The importance, and potential value, of refusing consent to a warrantless search of your home is demonstrated by the experience of Alberto Wallace and Jonathan Jolly. Officers from the Winston-Salem Police Department received information from an informant that indoor Cannabis cultivation was occurring in a certain house. The officers were not able to confirm the information, so they decided to go to the house and ask a few questions of the occupants. When the officers knocked on the door, a man who identified himself as Jonathan Jolly answered. The officers identified themselves as police officers and explained that they received some information that someone was growing Cannabis in the home. Mr. Jolly kept his cool, and exited the residence, closing the door behind him. The officers spoke with Mr. Jolly and then asked him to consent to a search of his residence. Before Mr. Jolly could answer, his roommate, Alberto Wallace, came outside and wisely shut the door behind himself. The officers again asked for consent to search the home and both men refused to consent. After a some more discussion the officers once again asked for consent to search and once again were denied.

Despite both men\'s refusal to consent to a search, the officers decided to search anyway, telling the men that they had a right to make a "protective sweep" without a warrant. After a final protest by Mr. Jolly and Mr. Wallace, the officers proceeded to enter the home and search it. After searching for about five minutes, the officers located some Cannabis plants. The officers then secured the home and requested other officers to apply for a search warrant based on the information discovered during the warrantless "protective sweep" search. Some time later, more officers arrived with a search warrant, removed the plants, and arrested Mr. Jolly and Mr. Wallace.

Before their trial, Mr. Jolly and Mr. Wallace argued that the officers\' warrantless entry was unlawful since the men never consented to the search and no exigent circumstances existed. The court agreed, finding that when the men refused to consent, they denied the officers the only legal means by which the officers could gain entry to the home. No exigent circumstances existed, and there was no legal justification for making a warrantless "protective sweep" of the residence. Therefore, because the officers\' search violated the constitution, the court suppressed the evidence against the men, and the case was dismissed — all because Mr. Jolly and Mr. Wallace knew their rights and had the courage to exercise them. {State v. Wallace [N.CApp. 1993] 433 S.E.2d 238.)

Officers Who Threaten to Obtain a Warrant

It is possible that some day a police officer will come to your home without a search warrant and accuse you of some sort of marijuana crime. The officer will tell you that he wants to search your home for marijuana, and that you should have nothing to worry about if you are innocent. He will also tell you that if you do not consent to a search, he will get a search warrant. He will tell you to "make it easy on yourself and just consent.

Although such coercive circumstances might later cause a court to rule that your consent was involuntary and hence invalid, don\'t depend on the court! You should never consent under such conditions. This tactic is almost always used when an officer knows that he does not have enough evidence to get a search warrant. (Obviously, if the officer really did ha ve sufficient evidence against you, he would have obtained a search warrant already.) Therefore, you can and should refuse to consent to the officer\'s entry and search in the absence of a search warrant. Once the officer leaves consider eliminating all evidence of marijuana for at least the next two weeks. However, be careful when performing such a cleanup. In one case, an officer parked outside a person\'s apartment after being refused consent to enter witnessed the person running out of his apartment toward the dumpster with a large amount of marijuana in his hands!

Who Can Consent to a Search of Your Home?

The issue arises as to whether someone else can consent to the search of your home. For example, can your landlord or roommate consent to the search of your apartment? To a large extent, the answer depends on the relationship between the person consenting and the home to be searched.

Landlords and Hotel Employees

So long as you are legally entitled to the premises, your landlord has no authority to consent to the search of your apartment. In other words, if you have paid your rent or are not in the process of being evicted, your landlord has no authority to consent to an officer\'s request to search your apartment. Any consent your landlord might give will be considered ineffective by a court, so anything an officer finds during such a search should not be used to convict you. The rule with respect to landlords also applies to hotel owners and hotel employees. In other words, a hotel clerk, janitor, or maid has no authority to consent to an officer\'s request to search your hotel room.

Roommates and Spouses

For roommates the answer is slightly more complicated. If your roommate is home alone when the police arrive, he can consent to a search of any area that he shares with you. Courts have held that you maintain no reasonable expectation of privacy in such common areas because your roommate has an equal right to invite his friends or guests into them. However, your roommate cannot consent to a search of any areas that you alone inhabit. For instance, if you have a separate private bedroom, then your roommate may not consent to a search of that room.

Suppose both you and your roommate are home when the police arrive. Can your roommate consent to a search of the common areas over your objection? Under a Supreme Court decision, the answer seems to be that your objection is irrelevant. The police may search the common areas based on the consent of your roommate alone. Accordingly, you should be aware that when you decide to have a roommate, you are potentially giving up a portion of your Fourth Amendment privacy rights, at least in the common living areas. The same rule applies to your spouse and anyone else you allow to live with you.

In contrast, most courts hold that your roommate or spouse may not consent over your objection if he or she is away from the apartment. In one case, for example, the police lawfully arrested Charles for possession of marijuana after stopping him for a traffic violation. Charles denied possessing any other marijuana and gave the police his key to the apartment, telling them that they could search it to confirm that he possessed no other marijuana.

When the officers arrived at the apartment, Charles\' roommate, Roger, was home and refused to allow the police to enter. The officers, disregarding his objection, forcibly entered the apartment, found marijuana inside, and charged Roger with possession. The court that heard the case held that the officers search of the apartment was illegal. The case against Roger was dismissed for lack of evidence.

This case created the general rule that a roommate who is away from the premises may not authorize police to enter and search the premises if the other roommate is on the premises and objects to the police entering and searching.

Finally, it is important to know that you give up a great deal of protection against warrantless searches of your home if your roommate is on probation or parole. A person\'s probation or parole is often predicated on his waiving the right to be free from unreasonable searches. This means that a police officer or probation officer can search your roommate at any time for any reason, including unannounced warrantless visits to your apartment to look for drugs. During such a search, the officer can search any area that you share in common with your roommate and any area that your roommate controls exclusively.

The officer cannot search areas that you exclusively control. If you live with a person on probation or parole, you are, therefore, especially well advised to keep your private items in your own room, rather than in the common areas shared with your roommate. That way, they remain protected from warrantless searches.

Children

Can your child consent to a search of your home? The answer to this question depends on the age of the child. In one case, the consent of an 11-year-old child was held to be ineffective on the theory that a child cannot waive the privacy rights of his or her parents. However, the older the child, the greater the chances that a court will find the child\'s consent valid. In addition, consent by a child is commonly ruled valid when the child was the victim or witness of a crime, and was admitting the police for that reason.

Your Home and "Exigent Circumstances"

As mentioned earlier, an officer can legally search a person\'s home without a warrant if "exigent circumstances" exist. The California Supreme Court has iefined "exigent circumstances" as follows:

[E]xigent circumstances means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence.

Children

Can your child consent to a search of your home? The answer to this question depends on the age of the child. In one case, the consent of an 11 -year-old child was held to be ineffective on the theory that a child cannot waive the privacy rights of his or her parents. However, the older the child, the greater the chances that a court will find the child\'s consent valid. In addition, consent by a child is commonly ruled valid when the child was the victim or witness of a crime, and was admitting the police for that reason.

Your Home and "Exigent Circumstances"

As mentioned earlier, an officer can legally search a person\'s home without a warrant if "exigent circumstances" exist. The California Supreme Court has defined "exigent circumstances" as follows:

As you can see, the definition begins quite stringently, but loosens considerably as it progresses. Because the definition of exigent circumstances features so much leeway, judges are apt to hear findings of exigent circumstances on the slightest grounds. In one case, for example, Mr. Robinson was at home when undercover police officers came to his home to try to purchase marijuana. Mr. Robinson evidently had some suspicions about his visitors, because he refused to let the undercover officers inside. However, as luck would have it, when Mr. Robinson partially opened the door to tell them to go away, one officer saw a large bag containing marijuana just inside the door. The officer blocked the door with his foot, thereby allowing the other officers to push their way into Mr. Robinson\'s home and arrest him. The court upheld the officer\'s warrant less arrest of Mr. Robinson on the grounds that immediate action was necessary to prevent the destruction of the evidence; an exigent circumstance.

Obviously, if you have items that you wish to remain private inside your home, you should be especially careful about allowing people entry. If possible, you should install a "peephole" in your door to permit you to distinguish friend from foe without even opening your door or revealing your presence. If you do not have a peephole, you should respond to any unexpected knocks by asking "Who is it?" Do not open the door unless you are absolutely sure it is someone you know and trust. If the day comes when the response to your question is, "Police officers," you may legally keep your door shut and ask them (through the door) what they want. You do not have to open your door unless they tell you they have a warrant.

In one case, officers received a call that the occupants of a specific residence were using narcotics. The officers went to the house and knocked on the door. When someone inside opened the door, the officers were engulfed by the "odor of burning marijuana emanating from within." The court held that the officers acted legally in immediately entering the home without a warrant because any delay might have resulted in the destruction of the marijuana. Therefore, the officer\'s warrant less entry was justified by exigent circumstances.

Exigent circumstances can also arise when someone commits a serious crime and is being chased by police officers. If the suspect is seen to enter a home, the police do not have to get an arrest warrant authorizing them to enter and arrest the suspect. The courts have held that such situations require the officers to act without delay. The exigent circumstances rule permits the officers to kick the door down and arrest the suspect without first obtaining a warrant. If they see marijuana while inside the home, they can, and will, seize it.

In a 1994 case in Virginia, officers received a telephone call from Darin Hill\'s next-door neighbor asking them to send an officer to check if Mr. Hill\'s house had been burglarized. The neighbor reported that Mr. Hill was out of town, but that his front door was open about a foot. When officers responded, they entered Mr. Hill\'s home to search for a possible burglar but stumbled upon a sophisticated basement growroom. The Virginia Court of Appeal upheld the lawfulness of the officers\' warrantless entry of Mr. Hill\'s home because the report of Mr. Hill\'s neighbor gave them probable cause to believe that Hill\'s house had been inlawfully entered and that the burglar might still be on the premises. In this ituation, the officers had to act quickly to be effective. They discovered the growroom in plain view during their lawful search for the burglar, and hence the ncriminating evidence was lawfully seized despite the lack of a warrant. (Hill v. Commonwealth [VaApp. 1994] 441 S.E.2d 50.)

In a similar vein, if officers reasonably believe that it is necessary to act mmediately to save someone\'s life or to prevent serious bodily injury, they may nter a home without first obtaining a warrant. For example, John and Cindy were ioth unemployed and lived in a one-room apartment in a high-crime area. To upport themselves, John and Cindy cultivated a yearly crop of approximately 40 Cannabis plants. To relieve their stress, John and Cindy engaged in weekly primal cream sessions.

One Friday evening, after John had checked the pH level of all his plants, he :t loose with several blood-curdling high-intensity screams to purge himself of fie week\'s accumulated stress. John allowed himself to collapse on the couch, njoying a feeling of total relaxation.

Suddenly, John heard a loud knock at his door, followed by the announce-icnt, "Police officers! Open the door!" Frozen in fear, John remained motion-:ss, not knowing how to react. Fifteen seconds after the knock, John\'s front door /as kicked in, and two police officers ran into his apartment with their guns rawn. Immediately upon entering, the cops saw the Cannabis plants and quickly laced John under arrest.

The officers\' entry of John\' s home was legal under the exigent circumstances ule. The police officers, hearing John\'s scream, reasonably believed that omeone in John\'s apartment was in need of emergency assistance and might ave been the victim of a brutal crime. Therefore, the officers\' warrantless entry /as legal under the exigent circumstances exception to the warrant requirement, accordingly, the plants were properly introduced in court, and John was con-icted of Cannabis cultivation.

In contrast to the above example, if a court finds that a police officer was not :asonable in thinking that a warrantless entry was immediately required, the ourt will find the officer\'s warrantless entry illegal and exclude any evidence 3und. For example, in one case:

Officer Del Rosso testified that about 9:40 p.m., on September 26,1979, accompanied by a factory custodian, he was searching the third floor of a factory for intruders. The factory was about 40\' distant (across a 32\' street) from the "three-decker" apartment house in which, on the third floor, Huffman lived as a tenant. The officer\'s attention was attracted by lighted windows without curtains or shades. Through the windows (before he called for assistance) he observed for an appreciable time, Huffman and two other men taking a green herb from one bag and putting it into numerous other smaller bags. Officer ]

Del Rosso called for police assistance and then obtained binoculars .... He was joined by several other officers. With them, he observed Huffman and the other men through two different windows for about fifteen minutes more.

The officers went to the apartment house, found "the first door dow