Howe v. State

¶1concurring:

¶2I concur in the result reached by the majority but do not subscribe to the view that police officers who are exposed to the smell of drugs, in this case marijuana, do not have probable cause to make a warrantless arrest and then a search incident to the arrest. See State v. Luchetti, 87 Nev. 343, 486 P.2d 1189 (1971) (citing Chimel v. California, 395 U.S. 752 (1969)). Indeed, officers who approach a suspect at the door of his house, and are able to smell the odor of an illegal controlled substance, certainly have probable cause to believe that a felony is occurring in their presence, such as to justify a warrantless arrest. Id.; State v. Pool, 652 P.2d 254 (N.M. Ct. App. 1982) (holding warrantless entry and subsequent arrest valid where officer smelled odor of burning marijuana and thus had good faith belief that defendant, who closed door upon seeing officer, would immediately attempt to dispose of the contraband); see also United States v. Botero, 589 F.2d 430 (9th Cir.) (where officers followed recipient of bags of cocaine to apartment and placed him under warrantless arrest in the doorway as he opened the door, court held that arrest would have been valid if made after police entry into apartment because justified by exigent circumstances, i.e., the imminent prospect of contraband being removed or destroyed), cert. denied, 441 U.S. 944 (1979).

¶3Moreover, I disagree with the majority on the issue of exigent circumstances. Even under the five-factor test adopted in United States v. Rubin, 474 F.2d 262 (3d Cir.), cert. denied, 414 U.S. 833 (1973), and applied by the majority, I believe that exigent circumstances are demonstrated here.

¶4*471First, the majority seems to minimize the criminality involved in the possession of a quarter pound of marijuana by declaring that the possibility of Howe disposing of it while the officers sought a warrant does not demonstrate “urgency.” Of course, under Nevada law, the described offense is a felony. It is therefore a serious crime and the officers were under a duty not to ignore it.

¶5Second, the majority dismisses as unreasonable the officers’ belief that the evidence would be destroyed. I suggest that the majority’s assessment is optimistic to the extreme. When Howe opened the front door, Cooley and Mercado identified themselves as police officers. The officers also informed Howe that they had received complaints against Howe for possibly possessing marijuana. Mercado told Cooley that he detected the odor of burning marijuana. Under these circumstances, I suggest that it would have been irresponsible for the officers to have assumed that Howe would have left the marijuana untouched and available for seizure after they obtained a warrant.

¶6Moreover, I also believe that the most logical belief concerning the burning marijuana would have been that Howe had been smoking the substance and placed the burning material in an ash tray or some other receptacle while he went to the front door. If the officers had left for a warrant, or posted one of them outside while the other left for the warrant, it is unreasonable to assume that Howe would not destroy the contraband during the officers’ absence.

¶7Third, although it would appear that there would have been no danger to one of the officers remaining outside Howe’s residence while the other officer left to secure a warrant, there would have been an obvious and extreme danger that the contraband would be destroyed during the wait.1 If, however, the warrantless arrest is deemed valid, then a limited search incident to the arrest would have been justified to assure the officers’ safety.

¶8Finally, the majority concludes that the fourth and fifth Rubinfactors are satisfied, but nevertheless concludes that the possible destruction of a small quantity of marijuana, without more, does not justify a warrantless entry into a person’s home.21 have great *472difficulty with this court undermining felony classifications determined by the legislative branch of government. In the state of Nevada, our citizen-representatives have determined that possession of a small quantity of marijuana is a felony. It is not the prerogative of this court to countermand the public policy of this State and conclude that the crime implicated in this case is not sufficiently serious for officers to effectively deal with in the absence of a warrant. The fact of the matter is that if the officers had left Howe in order to obtain a warrant, all traces of the marijuana would have been gone when they returned. Thus, the majority has effectively declared that despite the fact that the possession and use of marijuana in Nevada is a felony, we as a court will not countenance the warrantless arrest of persons who commit these crimes in the immediate presence of a police officer.

¶9Notwithstanding my concern that we not proceed too far in our rulings as to what may or may not be done under Fourth Amendment jurisprudence regarding the type of situation that prompted the entry by the officers in the instant case, under the current state of the law, the officers could not conduct the extensive search that occurred here. A search incident to a lawful arrest could not have justified a warrantless search beyond the immediate vicinity of the arrest unless there was consent or exigent circumstances. The majority is correct in concluding that neither existed in the present case.3

¶10With the exception of the points of concern noted above, I concur in the majority’s opinion.