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.