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  1. #1
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    Jun 2008
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    Default Entry Into Home Based Upon Smell Of Marijuana

    My question involves search and seizure law in the State of: Missouri.

    At 6 AM my room mate was awakened to Police officers knocking on the door. They were investigating the whereabouts of a sign post which had been taken from campus.
    The knocked on our door because, as the post was being transported, it had been dragged continuously across the ground, leaving a scratch mark in the concrete side walk, ending in front of our house.
    My house mate opened the door, stepped out of the house, and closed the door behind him. Before he could say anything, one of the LEO's stated "I smell MJ", and then one cop put the door answerer in hand cuffs while the other entered our house. He was then escorted into the house and sat down on a couch, and then he had his miranda rights read to him. He was not later arrested, after consenting to a search of his room and forfeiting his MJ and paraphernalia.

    Myself and another of my house mates were awoken and we all met inside of our house, in the living room. The police solicited consent to search rooms, and the other of my room mates said "yes", while I said no. I was soon after arrested for receipt of stolen property, after presenting the sign post to the officers.

    My concern is whether or not the police violated our fourth amendment rights by entering the house without a warrant, but with PC.

    As far as I am aware and can tell, there were not present any exceptions to the search warrant rule, no exigent circumstances, nor were they given consent to enter the home.

    consent was not really denied specifically, either though.

    What are some of y'all's takes on this case?

    Thanks.

  2. #2
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    Aug 2007
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    Default Re: Entry Into Home Based Upon Smell Of Marijuana

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    My concern is whether or not the police violated our fourth amendment rights by entering the house without a warrant, but with PC.

    As far as I am aware and can tell, there were not present any exceptions to the search warrant rule, no exigent circumstances, nor were they given consent to enter the home.

    consent was not really denied specifically, either though.

    What are some of y'all's takes on this case?

    Thanks.

    Absent any surprises and additional facts to alter the totality of the circumstances, I would say your 4th AM rights wrere violated.

    Standing mute or failure to answer a specific yes to consent is not an adoptive admission to consent either.


    The USSC has carved out only a "few" exceptions to a warrantless home entry, and although possible destruction of evidence may be one, the simple smell of MJ indicates ONLY a minor crime and entry should be considered unlawful, yes!!

  3. #3
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    Jun 2008
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    Default Re: Entry Into Home Based Upon Smell Of Marijuana

    At the very beginning of the confrontation, that was, as far as I know, the totality of the circumstances.

    Later circumstances arose, of course.

    The totality of the circumstances, as were just confirmed by my room mate that answered the door:

    My room mate answered the door and a cop said "oh, there's one of them".
    The room mate stepped outside, the cop asked something to the effect of "do you know where the sign is?"
    He did not answer, just looked at them. Then an officer said "I smell Marijuana", put him in hand cuffs, and escorted him in the house. Woke every one up.
    There were three cops total at the beginning. two on the patio one near the side walk by the street (I'm told).
    The cops came into the house, woke people up, and one noticed a few seeds and stems on the coffee table that were not at all visible from the outside (guaranteed, as there were bottles and other drinking devices surrounding them).

    But the totality of the circumstances, in this case, end when the police entered the home, did they not?
    Later, the room mate, after inside and questioned by the police, allowed them to search his room and volunteered his marijuana and paraphernalia. I refused consent and was arrested for receipt of stolen property...Also a search warrant was issued for my room and items were seized.

    Do these facts alter the totality of circumstances?

    Thanks again!

  4. #4
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    Default Re: Entry Into Home Based Upon Smell Of Marijuana

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    But the totality of the circumstances, in this case, end when the police entered the home, did they not?
    Later, the room mate, after inside and questioned by the police, allowed them to search his room and volunteered his marijuana and paraphernalia. I refused consent and was arrested for receipt of stolen property...Also a search warrant was issued for my room and items were seized.

    Do these facts alter the totality of circumstances?

    Thanks again!
    Even assuming they had PC to believe an occupant of the home stole the sign, it does not warrant a home entry unless it was in open/plain view.

    If you were arrested for possession of stolen property based upon an unconstitutional entry, it may be possible to suppress the evidence. You need to discuss this matter with your retained attorney, or court appointed one.

  5. #5
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    Mar 2005
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    Michigan
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    Default Re: Entry Into Home Based Upon Smell Of Marijuana

    Did the affidavit in support of the warrant to search your room include allegations about what was found in the home following the initial entry? (i.e., marijuana and paraphernalia)?

  6. #6
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    Jun 2008
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    Default Re: Entry Into Home Based Upon Smell Of Marijuana

    I do not know. I haven't been able to hire a lawyer yet to look into it. I'm sure, however, that it did. The search warrant inventory included the things that were volunteered (from locations in the house that the search warrant did not specify as a search location) i.e. the inventory included my house mate's paraphernalia and weed, which was found/released from his room while the search warrant stipulated the room in the back corner of the house, which was solely my room...


    I need to have a lawyer contact the prosecuting attorney, who will then contact the campus police dept. secretary about releasing the affidavit, who will then release it to the pros. attorney, who will forward it to my attorney, that will give it to me...I need a day off of work, though, to go into the PDO and fill out a form or more.


    The sign was not in plain view from any vantage point outside of the residence. It was propped behind a wall, opposite the wall with the windows (facing the front porch, into the living room) on it.
    The seeds and stems weren't visible from outside of the house either, due to the large volume of junk surrounding them on the coffee table, coupled with the small viewing area with which to look in.

  7. #7
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    Default Re: Entry Into Home Based Upon Smell Of Marijuana

    You said you were arrested for possession of stolen property, the sign I take it, THEN a search warrant was served on you?

    This is confusing to me!

    Were they somewhat simultaneous or an hour apart, etc??

  8. #8
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    Jun 2008
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    Default Re: Entry Into Home Based Upon Smell Of Marijuana

    I was arrested inside of my home after being awoken and after their entry. It was for 'receipt of stolen property'.

    My female room mate (that did not answer the door) said that after I was gone they went outside and left one fellow to watch over the detainees. The missing officers, she was informed, were "filling out paperwork".

    There was also a shift change for cops around this time, says my female room mate.

    This was after I was gone because I do not remember it.

    I was taken into custody and released 24 hours later, from jail, without charges.

    I was released from jail at 6:18 AM, so I was arrested before 6:18 AM the day before.
    The Judge's signature was put on the search warrant at 8:18 AM, was served to me in holding, and then they came to the house and showed it to my room mates.

    So: Arrive at house, enter house, wake people up, get the sign post, get drugs volunteered, I refuse, I start talking about "protecting and serving", I'm Arrested, paperwork typed up, search warrant served, and only for my room. Questioned around 10:00 AM (the clock on the wall during holding was incorrect...)
    Noon: go to jail, crappy law show on TNT for 3 hours, lights out, lights on, commotions, food, sleep, movies from 1-5 am, medicine, I request release, am granted release.

  9. #9
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    Aug 2007
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    Default Re: Entry Into Home Based Upon Smell Of Marijuana

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    I was arrested inside of my home after being awoken and after their entry. It was for 'receipt of stolen property'.

    My female room mate (that did not answer the door) said that after I was gone they went outside and left one fellow to watch over the detainees. The missing officers, she was informed, were "filling out paperwork".

    There was also a shift change for cops around this time, says my female room mate.

    This was after I was gone because I do not remember it.

    I was taken into custody and released 24 hours later, from jail, without charges.

    I was released from jail at 6:18 AM, so I was arrested before 6:18 AM the day before.
    The Judge's signature was put on the search warrant at 8:18 AM, was served to me in holding, and then they came to the house and showed it to my room mates.

    So: Arrive at house, enter house, wake people up, get the sign post, get drugs volunteered, I refuse, I start talking about "protecting and serving", I'm Arrested, paperwork typed up, search warrant served, and only for my room. Questioned around 10:00 AM (the clock on the wall during holding was incorrect...)
    Noon: go to jail, crappy law show on TNT for 3 hours, lights out, lights on, commotions, food, sleep, movies from 1-5 am, medicine, I request release, am granted release.


    It seems you were "in jail" when the SW was shown to you, released, and then was home when it was executed? That is how I am seing the picture??

    Is that true?

  10. #10
    Join Date
    Mar 2005
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    Michigan
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    Default Re: Entry Into Home Based Upon Smell Of Marijuana

    Unless more evidence was found based on the warrant, it seems like a red herring. In terms of inevitable discovery, the after-the-fact nature of the warrant, if combined with any reference to drugs in the apartment, the street sign being located inside, or anything else that would follow an improper entry, it would seem impossible to say that the magistrate found that probable cause existed in the absence of the evidence discovered after entry. But at this point we don't know what was on the affidavit, nor what they were looking for. (Nor what, if anything, they seized based on the warrant.)

    I would be interested to learn how they characterized their entry on the police report. Was it depicted as having been based solely upon the smell of marijuana, did they claim to have other evidence as well that justified warrantless entry, or did they claim to have consent.

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