QUED IN - The Smell of Marijuana Does Not Constitute an Exigency

Attorneys: Guolee, Terrence F.

Spring 2014
According to the Seventh Circuit Court of Appeals, without more, police who simply smell marijuana burning encounter no exigency, and thus, must obtain a warrant to enter one’s home.
In White v. Stanley & Morrison, No. 13-2131, 2014 WL 929049 (7th Cir. Mar. 11, 2014), police arrested Plaintiff James White for obstructing a peace officer. On March 9, 2010, two officers arrived at the Plaintiff’s home to arrest his live-in girlfriend for the possession of a stolen vehicle registration sticker, a class 4 felony in Illinois.
Upon their arrival, the Plaintiff answered the door. However, he refused to allow the officers to enter without a warrant. After declining the officer’s request for entry, the Plaintiff attempted to close the door, but one of the officers blocked the door and the two tackled the Plaintiff in his stairwell. Prior to their entry, the officers claimed to smell marijuana, which was later confirm when the Plaintiff’s girlfriend was found with a half-burned joint.
After this event, the Plaintiff brought a § 1983 civil rights claim against the officers for false arrest and excessive force against. The officers moved for summary judgment on the false arrest claims, and claimed that the smell of marijuana constituted an exigency that allowed them to enter the house to prevent the destruction of evidence. The officers also offered the defense of qualified immunity, and argued in the alternative that it was not clearly established that the smell of marijuana alone did not rise to an exigency.
The district court denied their motion and found that the officers waived their defense to qualified immunity, despite the fact that they argued it in their answer and summary judgment, and that the Plaintiff argued against it in his response. The district court reasoned that the officers’ qualified immunity argument was underdeveloped, and stated nothing more than boilerplate requirements. The district court further explained that even had it stated more, the officers still were not entitled to qualified immunity because they violated a clearly established right.
On appeal, the court determined the issues of 1) whether the officers waived their qualified immunity defense; and 2) whether the officers should prevail on the merits of a qualified immunity defense. First, the court found that the district court erred in finding that the officers waived their qualified immunity defense. The court stated that waiver is enforced to prevent prejudice to the opposing party. However, in the instant case, the Plaintiff would not suffer any prejudice because not only did the officers’ answer and summary judgment motion place the Plaintiff on notice, but also the Plaintiff himself acknowledged the defense when responding to the officers’ motion. Accordingly, the court found that the officers did not waive their qualified immunity defense.
Next, the court found that although the smell of marijuana alone did not constitute an exigency, the officers were entitled to a qualified immunity defense. The court stated that in cases concerning qualified immunity, courts must establish “whether there was (1) a violation of (2) a clearly established constitutional right.”
With regards to whether there was a violation, the court explained that generally, to enter a home, the Fourth Amendment requires that police have probable cause and a warrant. However, the court recognized that some exigencies may serve as an exception to this general rule.
The officers argued that the smell of marijuana is an exigency that warrants an exception, but the court disagreed. In reaching this decision, the court relied on Johnson v. United States, 333 U.S. 10 (1948) and Welsh v. Wisconsin, 466 U.S. 740 (1984). The court referenced Johnson to suggest that since the smell of burning opium does not constitute an exigency, neither does the smell of burning marijuana. In relying on Welsh, the court abstracted the holding that “suspicion of minor offenses should give rise to exigencies only in the rarest of circumstances, because the state’s interest in gathering evidence of a minor offense is generally not strong enough to overcome the weighty interest in home sanctity.”
Based on this holding, the court found that marijuana possession does not overcome the interest in home sanctity. The court explained that in all of the states of its circuit, possession of marijuana is only a misdemeanor, and in some states, it may even soon be legal for medical purposes. Therefore, the court concluded that “the smell of burning marijuana, without more, did not provide an exigency permitting these officers to make a warrantless entry.”
With regards to whether there was a clearly established constitutional right, the court found there was not. The court explained that on the day of the Plaintiff’s arrest, several courts had addressed the question of whether the smell of burning marijuana, alone, was no exigency. However, their answers were both varied and conflicting. Thus, the court concluded that “[i]n light of this fractured case law, [it] cannot say that ‘at the time of the challenged conduct, the contours of [the Plaintiff’s] right [were] sufficiently clear’ such that ‘every reasonable official would have understood’ that entering the home after smelling the burning marijuana violated the right.” Accordingly, the court stated that despite the fact that the smell of marijuana, alone, did not constitute an exigency, the officers were entitled to qualified immunity.
This case is important in that it reaffirms the qualified immunity defense’s protection of officers responding to situations where the Constitutional issues have not been fully developed in the case law. Moreover, it serves as a rebuke to district court judges’ too-often seen practice of deeming defenses such as qualified immunity waived based on a court’s subjective determination that arguments raised in support of a defense have not been developed to the court’s satisfaction. Finally, the case sets out a limitation on an officer’s rights to use exigent circumstances as a defense – however, the line between what is a “minor offense” and what actions will allow an immediate entry under the exigent circumstances doctrine will remain subject to dispute.
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Terrence Guolee, a shareholder in our Chicago office has successfully represented defendants, plaintiffs and carriers in dozens of complex, multimillion dollar claims covering a wide area of facts and law, in state and federal courts across the country. Terry regularly represents officers and municipal defendants in Section 1983 claims and other civil rights liability matters. If you have any questions regarding this article, please contact Terrence F. Guolee or via 312-725-0889.
Thanks go to Q&H law clerk Kathleen Ihlenfeld for her assistance in the drafting of this case note.
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