On July 10, 2013, the Tenth Circuit Court of Appeals decided the United States v. Mongold and Moore [i], which addresses the issue of whether the odor of marijuana, a misdemeanor in Oklahoma, supports exigent home entry without a warrant. The facts of Mongold are as follows:
In 2010, Special Agent Ashley Stephens of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) visited Ms. Moore’s residence while investigating a large drug conspiracy and found a federal fugitive hiding there. Ms. Moore admitted to selling drugs within that conspiracy. She was not charged or convicted as part of that conspiracy, but Agent Stephens learned that Ms. Moore was a convicted felon.
In early 2012, Agent Stephens received anonymous calls from two of Ms. Moore’s neighbors complaining about the high volume of traffic entering and leaving her property. After receiving these calls, Agent Stephens and other officers conducted surveillance of traffic at Ms. Moore’s home. They noticed four different vehicles parked in her driveway on one occasion and three cars entering and leaving during a 40-minute period around noon on another day. The officers did not attempt to ascertain who owned the cars. This was the only suspicious activity the officers observed at the home.
Around a week later, on March 6, 2012, Agent Stephens and three other officers conducted a “knock and talk” at Ms. Moore’s home. At the Defendants’ detention hearing, Agent Stephens testified that he “arrived at the front door and knocked on the door. You could hear scurrying and shuffling within the residence, which immediately caused us concern. The door was then opened by an individual later identified as Mark Mongold.” He added, “Prior to opening the door, the male from inside asked who it was and we said it was the police.” At the suppression hearing, Agent Stephens testified that, after they knocked a male voice asked who was there and they responded, “The police.” Then “there was scurrying” or “loud movements” inside and “a short delay” before the door was opened. The sounds did not include toilets flushing or people’s voices.
After the delay, Mr. Mongold, who had been living in the home for several months, opened the door. Agent Stephens smelled marijuana and recognized what he believed were prison tattoos on Mr. Mongold. Agent Stephens asked for Ms. Moore. Mr. Mongold told him that he would go get her and turned to walk to the back of the house to find her. The officers followed him inside even though they did not have permission to enter the house. Once inside, Agent Stephens saw ammunition in a bedroom. He knew that Ms. Moore was a felon and that it was illegal for her to have firearms or ammunition. Agent Stephens also believed Mr. Mongold was a felon, based on his tattoos.
Agent Stephens directed the home’s four residents—Ms. Moore, Mr. Mongold, and Ms. Moore’s two adult children—onto the front porch. Agent Stephens told them that he had smelled marijuana and had seen ammunition in the home. He then informed them of their Miranda rights and asked them each to sign a form consenting to a search of the home. All four occupants consented. After receiving the occupants’ consent to search, officers re-entered the home and found a small amount of marijuana, drug paraphernalia, bags containing white powder, ammunition, a shotgun, and a revolver. [ii]
Mongold and Moore were charged with federal firearms violations, and they filed motions to suppress based on an alleged unconstitutional, warrantless entry. The district court denied the motion and the defendants pled guilty with the right to appeal the denial of their motions to suppress.
The defendants subsequently appealed to the Tenth Circuit Court of Appeals and argued that the officers entered their residence without a warrant in violation of the Fourth Amendment. The Tenth Circuit noted that under the Fourth Amendment, officers must have a warrant to enter a residence unless an exception, such as exigent circumstances or consent, existed. The court then set out to determine if the officers possessed sufficient exigent circumstances or consent to justify their warrantless home entry.
The court then noted that exigent circumstances are present in several situations such as (1) to prevent the destruction of evidence, (2) to aid an individual during an emergency, (3) to protect an individual from imminent injury, and (4) hot pursuit. [iii] In Mongold and Moore’s cases, the government claimed the exigent entry was based on the need to prevent the destruction of evidence and for officer safety.
The court then set out to determine whether the prevention of the destruction of evidence exception applied in this case. The court stated:
We employ a four-part test to determine whether the likelihood of destruction of evidence justified the officers’ warrantless entry. The test requires that an officer’s entry be “(1) pursuant to clear evidence of probable cause, (2) available only for serious crimes and in circumstances where the destruction of the evidence is likely, (3) limited in scope to the minimum intrusion necessary to prevent the destruction of evidence, and (4) supported by clearly defined indicators of exigency that are not subject to police manipulation or abuse.” United States v. Aquino, 836 F.2d 1268, 1272 (10th Cir. 1988). [iv]
In applying the facts of the case to the elements of the test above, the court noted that the officer’s observation of the odor of marijuana provided them with sufficient probable cause to meet the first factor of the test. As to the second factor, the court stated that the term “serious crime” is not well defined in court precedent. The court noted that in Illinois v. McArthur [v], the Supreme Court held that possession of marijuana was sufficient to prevent a resident from entering his home; however, they noted that barring entry into a home is not as serious of an intrusion as a warrantless entry into a home. [vi] The court also noted a previous Tenth Circuit case, the United States v. Carter [vii], where they held that “possession of a small quantity marijuana” was likely a misdemeanor and as such did “not reach the level of ‘serious crime’ required by Aquino.” [viii] Further, the court stated that under Oklahoma statute, marijuana possession is a misdemeanor punishable by less than a year in prison. As such, the court held:
[I]f marijuana possession is the only crime for which the officers in this case had probable cause, the exigency exception for destruction of evidence should not apply because marijuana possession is not a serious crime. [ix] [emphasis added]
The court also considered whether the officers had probable cause to believe Mongold and Moore were committing the crime of drug trafficking, which is a serious crime. However, based upon the facts of the case, they determined that probable cause did not exist for the crime of drug trafficking.
As such, the “destruction of evidence” exigent circumstance exception to the warrant requirement did not apply in this case.
The court next set out to determine if whether “officer safety” issues were present as an exigent circumstance in this case. The court stated:
We also have recognized concerns for officer safety as a valid exigent circumstance justifying warrantless entry. United States v. Smith, 797 F.2d 836, 840 (10th Cir. 1986). This exception provides that “(1) the law enforcement officers must have reasonable grounds to believe that there is immediate need to protect their lives or others or their property or that of others, (2) the search must not be motivated by an intent to arrest and seize evidence, and (3) there must be some reasonable basis, approaching probable cause, to associate an emergency with the area or place to be searched.” Id. [x]
The agent testified that he believed entry was necessary for officer safety reasons because the home’s owner, Moore, was a known felon, and he believed, based on his tattoos, that Mongold was also a felon. The court, however, stated:
Officer safety is not an alternative ground to affirm because the first element of the test is dispositive. The Government presented no evidence that the officers had “reasonable grounds to believe that there [was] immediate need to protect their lives or others.” Smith, 797 F.2d at 840. Before entering the home, the officers had not seen a weapon or any other indication of heightened danger. They could most easily have protected the officers’ safety by leaving Ms. Moore’s home, not by entering it.The test for justifying warrantless entry into a home based on the need to protect officer safety requires that the facts establish all three elements of the test. The Government failed to provide evidence to satisfy the first element. The officers’ warrantless entry therefore was not justified by the need to protect officer safety. [xi]
As such, the court held that the “officer safety” exigent circumstance exception did not apply.
Lastly, the court set out to determine if the “consent” exception to the warrant requirement applied in this case. It is important to note, however, that since the court determined that the initial entry into Moore and Mongold’s residence was in violation of the Fourth Amendment, a special rule applied regarding the subsequent consent. The court stated:
[I]f consent follows immediately after a Fourth Amendment violation, “the government must prove not only the voluntariness of the consent under the totality of the circumstances, but the government must also establish a break in the causal connection between the illegality and the evidence thereby obtained.” United States v. Melendez-Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994). [xii]
To determine if a “break” in the causal connection of the illegal conduct and the subsequent consent ocurred the court stated they must consider:
(1) the temporal proximity between the police illegality and the consent to search; 2) the presence of intervening circumstances; and particularly 3) the purpose and flagrancy of the official misconduct.” Melendez-Garcia, 28 F.3d at 1054 (citing Brown, 422 U.S. at 603-04). [xiii]
In this case, the district court did not make factual findings concerning a possible “break” in the causal connection. As such, the court of appeals remanded the case back to the district court for a ruling on this issue.
Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
[i] Nos. 12-7073 & 7075, 2013 U.S. App. LEXIS 13943 (10th Cir. July 10, 2013 Unpublished)
[ii] Id. at 3-6
[iii] Id. at 10
[iv] Id. at 12
[v] 531 U.S. 326 (2001)
[vi] Mongold at 13
[vii] 360 F.3d 1235 (10th Cir. 2004)
[viii] Mongold at 13
[ix] Id. at 14
[x] Id. at 18
[xi] Id. at 19-20
[xii] Id. at 20-12
[xiii] Id. at 22