Mimesis Law
16 August 2017

In Virginia, Refusing To Let Police Into Your Home Gives Them Authority To Enter

Sept. 29,  2015 (Mimesis Law) — According to the Supreme Court of Virginia (broken link to Evans v. Virginia fixed), closing the door on police who smell marijuana can provide exigent circumstances for them to burst into your home.

Before we get into the facts, let’s all take a trip in the wayback machine for a moment. Back when the country was founded, before the Supreme Court discovered sovereign immunity hiding in the fine print of the 11th Amendment, public officials had to get a warrant to search your house. While there was no exclusionary rule, if the officials searched your home without a warrant, they risked being sued for money damages. To keep those officials from getting a warrant arbitrarily, the drafters of the Bill of Rights set out some rules: swear that you have a good reason to think you’ll find something worth searching for and name the stuff you’re seeking.

Back then, if a public official came knocking at your door without a warrant, you could tell him to go away. And if he didn’t, you could sue him. In Virginia, however, the best you can do is cower in your home and hope he goes away, because answering the door is going to lead almost inevitably to a warrantless search.

In this case, three police officers were walking by an apartment when they smelled a “cloud of heavy and extremely strong marijuana odors.” They knocked on the door, and the defendant’s mother answered. They asked about the marijuana, and apparently, nothing came of it, because she closed the door and sent them on their way.

Or so she thought. The officers knocked again. This time, the defendant’s mother was obviously frightened—officers testified that she was visibly shaking. Officers asked again for her to incriminate herself by saying that someone was smoking marijuana in her home. She said, “[a]in’t nobody smoking weed in here” and “slammed” the door in the police officer’s faces.

Obviously, this sort of rudeness would not stand for the men who felt entitled to keep knocking until they were granted entry. They knocked a third time. For five minutes, no one answered, and the officers loitered in front of the door. Tellingly, they heard “some movement,” which courts have held to be suspicious. A note to readers confronted with this situation: please remember to stay totally motionless while police bang on your door.

When the mother finally opened the door, one of the officers slipped his hand in the door, slipped past her, and saw a marijuana blunt in “plain view.” He had to rush past her, he said, because if he didn’t push his way into her home she could have destroyed the marijuana her son was smoking before he could get a warrant.

After demonstrating to the defendant’s mother that her attempts to get them out of her home would be fruitless, the police had her sign a written consent authorizing them to search the home. They found some marijuana and a variety of other contraband.

Not only did the Supreme Court of Virginia find this behavior completely acceptable, they were openly contemptuous of the mother’s attempt to assert her rights and her attorney’s arguments that the officer’s actions were improper.

The defendant’s attorney tried to argue that the government could not benefit from an exigency that was created wholly by their own actions, but the court pointed out that that rule was eviscerated in Kentucky v. King, a case that held that police officers can knock on someone’s door and burst in if they hear rustling or furtive movements.

Once police knock on a door, the court reasoned, they have every reason in the world to think the occupants will try to destroy evidence. This is because the occupants (wrongly?) think that the police will just burst in without a warrant and so immediately start destroying contraband. Because that fear is obviously irrational, the only reasonable response is to burst in without a warrant.

It’s clear that the court had fun writing the opinion:

One rather obvious commonality is that someone with illegal drugs would prefer not to be caught with them. That desire is at its apogee when the police are right on the verge of doing just that. Scores of cases have observed that one possessing illegal drugs in an apartment or home would quite likely try to get rid of them upon realizing that the police are at the front door inquiring about the distinct odor of the drugs coming from inside.

The court even manages to work a little Shakespeare into its opinion, pointing out that the mother’s futile attempt to keep armed strangers from bursting into her home and potentially killing her reminded it of a play. “Ain’t nobody smoking weed in here,” was little more than an unintentional apophasis worthy of the Bard’s retort: “The Lady doth protest too much, methinks.” There must have been quite a few chuckles in the courthouse about that one.

What the court wholly fails to address, possibly because defense counsel did not bring it up, is that the whole knock and talk exception (that police officers can go door to door to talk to people in their homes) is predicated on the idea that citizens allow salespeople, canvassers and others to approach their doorstep. Because police aren’t pushing past any common social norms by knocking for a conversation, the 4th Amendment doesn’t prohibit them from doing it.

But when police transgress those boundaries, the 4th Amendment does offer some protection. That’s why in Florida v. Jardines, the Supreme Court of the United States said that police officers can’t bring drug dogs around to your front stoop to sniff around. That’s not a liberty we’d give a regular guest, rather, as the concurrence noted, it would be like someone showing up with high-powered binoculars and trying to peer into your windows.

This case is far worse, of course. Imagine for a second that a door-to-door Bible salesman comes to your home, and you politely decline. He keeps knocking, you open it a second time, and he’s so irritating that you slam the door in his face. Then, he waits outside your door with two other men, continuously knocking and yelling that he just wants to talk to you. A reasonable person at that point might think that gunplay or a call to the police would be necessary to remove the threat.

Yet without considering whether the officer’s conduct of repeatedly knocking on the door (the conduct that created the exigency) would rightfully freak out any ordinary citizen, the Supreme Court of Virginia blithely okayed the practice—in essence ruling that the smell of marijuana is no different from a warrant.

To the citizens of Virginia, there are few scraps of liberty left. When three armed men knock at your door, you can choose to either hide motionlessly in your living room, hoping that they go away, or you can answer the door and risk them spotting some exigency that will let them into what some old-timey judges used to call your “castle.”

In the mean-time, it might be time to start knocking on lawmakers’ doors. Don’t worry if they say no. In Virginia, that’s just an invitation to keep on knocking.

14 Comments on this post.

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  • Steven M. Warshawsky
    30 September 2015 at 8:22 am - Reply

    Please correct me if I am wrong, but the application of the exigent circumstances doctrine to situations involving the potential destruction of evidence is longstanding black letter law, at least since I was in law school (1990s). Once police officers have knowledge of criminal activity going on inside a house and there is reason to believe that relevant evidence may be destroyed, the exigent circumstances exception to the consent/warrant requirement applies and they can enter the home without violating the Fourth Amendment.

    There does not appear to be anything legally controversial about the Virginia court’s decision in this case. Granted, the case involved smoking marijuana inside the home, which is a trivial issue and should not even be a crime (I assume this is really what bothers the author about this case). But it is a crime, and the exigent circumstances doctrine obviously applied in this case (the author makes no effort to argue otherwise). Is the author truly surprised by the outcome? This article, which contains no helpful legal analysis or advice, seems to belong on another kind of website.

    • Andrew Fleischman
      30 September 2015 at 8:47 am - Reply

      As the dissent noted, the legally interesting thing about the case is that the police officers were allowed to assume exigency from nothing more than knocking on the door (three times), smelling marijuana, and hearing normal movement. If that is sufficient to make warrantless entry, then getting a warrant is virtually never necessary.

      Applying the exigent circumstances doctrine so broadly is legally controversial.

      • robert thomas
        9 October 2015 at 11:49 pm - Reply

        Well stated. The operating warrant in Virginia now consists of smelling marijuana or detecting furtive movements. Both of which can be police fictions. Just point me to the nearest government euthanasia center so I can be recycled.

  • This court thinks you telling police to stay out of your house gives them the right to enter | Rare
    30 September 2015 at 1:02 pm - Reply

    […] Does telling police to stay out of your house give them the right to enter? The Virginia Supreme Court apparently says “yes”: […]

  • Ernie Beverage
    30 September 2015 at 8:48 pm - Reply

    Well said Andrew Fleishman, and nobody mentioned medical marijuana which makes the whole fiasco null and void by any standard, let em force their way into my place, I got the second amendment waiting for em

  • Ken Womble
    2 October 2015 at 10:22 am - Reply

    Side point, granted, but one that struck me as a criminal defense attorney. The notion that the police would be banging on someone’s door for minutes and then, upon eventual entry, see a blunt in “plain view is laughable. Unfortunately, such testimony (read: perjury) is quite common and rarely questioned by judges who are all too happy to believe the incredible story of a police officer, because … justice?

    • Andrew Fleischman
      2 October 2015 at 10:26 am - Reply

      It’s actually a little unclear in the opinion if they saw the blunt immediately upon entering, if the mother brought it to them on request, or if they found it during a “protective sweep,” where they checked to see if there were any dangerous people hiding in dresser drawers or under mattresses.

    • shg
      2 October 2015 at 11:20 am - Reply

      The claim, no matter how it’s spun, emits the unpleasant odor of deceit. That said, I can’t tell you how many times defendant have done (or failed to do) monumentally stupid stuff over the years, like leaving the drugs on the table in plain view even after the cops came a’knockin’. When I ask why, they avert their eyes and shrug. Remember, they’re presumed innocent, not intelligent.

  • Murderous Cops Get Paid Big Bucks | CopBlock Radio | The Derrick JThe Derrick J
    8 October 2015 at 5:33 pm - Reply

    […] doesn’t matter when it comes to law enforcers entering your home. In fact according to them, refusing to let the police into your house gives them authority to enter. Consent be damned! Could you imagine if rape cases were decided this way? “Your Honor, she […]

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    9 October 2015 at 9:17 am - Reply

    […] doesn’t matter when it comes to law enforcers entering your home. In fact according to them, refusing to let the police into your house gives them authority to enter. Consent be damned! Could you imagine if rape cases were decided this way? “Your Honor, she […]

  • Tim
    11 October 2015 at 9:55 pm - Reply

    Man Virginia is about as backwards as it can be. I suppose since they still wear the wigs in court it explains a lot.

  • James Livingston: Killed For Knowing His Rights
    20 November 2015 at 9:38 am - Reply

    […] to prove its commitment to the Fourth Amendment. Hopefully they will take a different position than Virginia and not add another cut to the […]

  • Murderous Cops Get Paid Big Bucks | CopBlock Radio | Cop Block
    24 December 2015 at 12:49 am - Reply

    […] doesn’t matter when it comes to law enforcers entering your home. In fact according to them, refusing to let the police into your house gives them authority to enter. Consent be damned! Could you imagine if rape cases were decided this way? “Your Honor, she […]

  • ‘Twas The Night Before Lynchmas
    24 December 2015 at 9:10 am - Reply

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