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Alan Rockefeller
Mycologist


Registered: 03/10/07
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The Smell of a Burning Joint Does Not Justify a Warrantless Entry (DO NOT open the door!)
#7997535 - 02/08/08 06:45 PM (15 years, 11 months ago) |
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Search and Seizure: The Smell of a Burning Joint Does Not Justify a Warrantless Entry, US Fourth Circuit Holds
http://stopthedrugwar.org/chronicle/522/fourth_circuit_appeals_court_marijuana_smell_search_warrant
Police who entered an apartment after smelling marijuana being smoked there violated the Fourth Amendment's protections against unreasonable searches and seizures, the 4th US Circuit Court of Appeals held in a late January ruling. Evidence found during a subsequent search with a search warrant based on that illegal entry must also be thrown out, the court held.
The decision came in US v. Mowatt (http://pacer.ca4.uscourts.gov/opinion.pdf/064886.P.pdf), in which Bladensburg, Maryland, police showed up at the door of Karim Mowatt's 10th floor apartment to investigate a noise complaint. They smelled marijuana and demanded they be allowed to enter the apartment, but Mowatt refused, repeatedly asking if they had a search warrant. Police then claimed they feared Mowatt had a weapon, forced their way in, and found guns and drugs. Police then used the evidence they found at the apartment to get a search warrant to further search the apartment. Based on contraband found there, Mowatt was charged with various drug and gun offenses.
Before trial, the trial judge denied Mowatt's motions to suppress the evidence, buying prosecutors' contentions that the warrantless entry was lawful because "the risk of destruction of the evidence of marijuana possession constituted exigent circumstances." Mowatt was found guilty in May 2006 and sentenced to a total of 16 years and 5 months.
The 4th Circuit disagreed, noting it was only the arrival of the offices at the door that created any exigent circumstances. "Although the officers had every right to knock on Mowatt's door to try to talk to him about the complaint... without a warrant, they could not require him to open it," Judge William B. Traxler Jr. wrote. The officers "needed only to seek a warrant before confronting the apartment's occupants," Traxler wrote. "By not doing so, they set up the wholly foreseeable risk that the occupants, upon being notified of the officers' presence, would seek to destroy the evidence of their crimes."
US Attorney Rod Rosenstein, who argued the case, wasn't happy, he told the Maryland Daily Record (http://www.mddailyrecord.com/article.cfm?id=4205&type=UTTM). "The implications of this opinion are very broad for what police officers should do in this situation -- which isn't an uncommon one," he said. He added that he is working with the Justice Department to decide whether to appeal the decision.
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Seuss
Error: divide byzero



Registered: 04/27/01
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Re: The Smell of a Burning Joint Does Not Justify a Warrantless Entry (DO NOT open the door!) [Re: Alan Rockefeller]
#7997767 - 02/08/08 07:30 PM (15 years, 11 months ago) |
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Quote:
The officers "needed only to seek a warrant before confronting the apartment's occupants," Traxler wrote. "By not doing so, they set up the wholly foreseeable risk that the occupants, upon being notified of the officers' presence, would seek to destroy the evidence of their crimes."
The writing between the lines... very few judges would issue a search warrant for a home based upon an odor and nothing more.
-------------------- Just another spore in the wind.
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kriminalelement
"jesus wept."



Registered: 09/26/07
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Re: The Smell of a Burning Joint Does Not Justify a Warrantless Entry (DO NOT open the door!) [Re: Seuss]
#7997828 - 02/08/08 07:48 PM (15 years, 11 months ago) |
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They could have gotten it plenty of ways if they wanted. They were dumb piggies and now they've lost another court case.
Hurray for the fourth circuit!
-------------------- While there is a lower class, I am in it While there is a criminal element, I am of it While there is a soul in prison, I am not free. Eugene V Debs
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Seuss
Error: divide byzero



Registered: 04/27/01
Posts: 23,480
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Re: The Smell of a Burning Joint Does Not Justify a Warrantless Entry (DO NOT open the door!) [Re: kriminalelement]
#7997943 - 02/08/08 08:23 PM (15 years, 11 months ago) |
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> They could have gotten it plenty of ways if they wanted.
Not without perjuring themselves. Affidavits for search warrants are sworn under oath. (At least where I used to live.)
-------------------- Just another spore in the wind.
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SicGeist
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Re: The Smell of a Burning Joint Does Not Justify a Warrantless Entry (DO NOT open the door!) [Re: Seuss]
#8009962 - 02/11/08 06:17 PM (15 years, 11 months ago) |
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A police officer committing perjury isn't something I imagine is terribly uncommon, particularly in a circumstance such as this.
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NizzyJones
Fight evil with funk



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Re: The Smell of a Burning Joint Does Not Justify a Warrantless Entry (DO NOT open the door!) [Re: Seuss]
#8017474 - 02/13/08 12:48 PM (15 years, 11 months ago) |
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Quote:
Seuss said: Affidavits for search warrants are sworn under oath. (At least where I used to live.)
Quote:
The Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to b, and particularly describing the place to be searched, and the persons or things to be seized.
It's written in the fourth amendment that testimony on which a warrant is based must be sworn testimony. So that's the case everywhere in the states.
-------------------- Wildflower seed on the sand and stone, may the four winds blow you safely home Curriculum vapidum (dry herb vapes)
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