Law Enforcement Bulletin 

Question: Can officers make a warrantless entry into a home based on an observation of marijuana and marijuana paraphernalia viewed from outside the residence?

Quick Answer: No. Although exigent circumstances allow officers to make a warrantless entry into a home, observations of minor offenses made from outside the home do not give rise to an exigency.

Facts: Officers responded to a complaint of loud music and alleged drug use. Upon arriving, officers followed the smell of burning marijuana and loud music to Ambrosini’s apartment. While standing in a common area, one officer was able to detect the smell of marijuana coming from a small opening in the apartment’s sliding door. He also observed a glass pipe and what appeared to be marijuana on a kitchen table. Based on these observations, officers entered the apartment, seized the items, and cited Ambrosini for marijuana possession and possession of marijuana paraphernalia – each a minor misdemeanor. As a general rule, warrantless plain view seizures are permissible if: 1) the officer did not violate the Fourth Amendment in arriving at the place from which he viewed the object; 2) the officer has a lawful right of access to the object; and 3) the incriminating character of the object is immediately apparent. In this case, although officers were lawfully present in the common area outside the apartment, Ambrosini had an expectation of privacy inside the apartment. The United States Supreme Court has determined that exigent circumstances premised upon the imminent destruction of evidence of a minor offense is insufficient to overcome the presumption of unreasonableness that attaches to a warrantless entry. Therefore, the entry in to Ambrosini’s apartment was invalid.

Keep in Mind: While concern for destruction of evidence may give rise to a warrantless entry, officers should be mindful that courts have limited the application of this rule when considering minor offenses such as those related to marijuana.