Did you know the police are allowed to lie to you? It’s true. The police can make up facts out of whole cloth and present them as fact.
What if the police wanted you to open the door to your house so they could peek inside? One would think that cops must obtain a warrant before entering a private residence. Instead, cops can lie about your car being robbed so you open the door for them.
This brings us to our case of the day. Stern vs. State No. 05-08-00553-CR
Facts-
Plano PD received an anonymous call about the odor of marijuana coming from an apartment. Having solved all real crime in the area, Plano PD sends over a few officers to investigate. The cops have no warrant, no probable cause or emergency required to gain entrance. Instead Plano PD is hoping those inside the apartment will open the door so they can see the drugs in “plain view.” (If a cop sees drugs he can come in and arrest without a warrant.)
A Plano PD cop puts covers the peephole in the door with his finger and then bangs on the door yelling “Dude someone is breaking into your car?” Plano police invent a malum in se crime so they can arrest for a malum prohibitum offense. A monument to all that is wrong with cannabis prohibition.
What happens next? The defendant quickly opens the door to investigate the fake car break in.
From the opinion-
“The aggressive action startled both uniformed officers. Endsley stated he was not expecting somebody to come running up to him like he wanted to fight. When appellant saw the officers, he took a step back into the apartment while the door was still open. At this point the officers described the odor as “a stronger odor of marihuana” and as “freshly burning marihuana” coming from inside the apartment. While the door was open, Endsley saw another person, identified as Bach, sitting on the couch. When Bach saw the officers, “it looked like he was rummaging through something at the time by the-on the couch.” The officers could not see Bach’s hands. Bodacki stepped onto the threshold of the door to prevent appellant from closing the door. Bodacki saw beer cans and a marihuana “bong” in plain sight inside the apartment. The officers asked the two persons not to move.”
The “aggressive action” startled the police? These cops cover the peephole, bang on the door, and then tell Stern his car is being burglarized and the cops act surprised when the defendant comes running outside to investigate? Are these cops also startled when the sun comes up each morning?
Issue- Can the cops fake a car burglary, cover up your door peephole, prevent you from closing the door, then peak inside your house, all without a warrant?
Holding- Of course, this is a drug search. How do you think we bust pot smokers?
The record reflects and the trial court found the officers entered believing officer safety and prevention of the destruction of evidence were paramount. Under these circumstances, we hold the officers had sufficient probable cause to enter the apartment.
We next examine the issue of whether exigent circumstances existed to support a warrantless search of the apartment. When the officers first arrived at the apartment complex, they had information that there was a marihuana problem at a specific apartment. They corroborated this information when they arrived at the apartment and smelled marihuana emanating from the apartment doorway and then detected a stronger smell after appellant opened the front door. The combination of the odor of freshly burning marihuana, the fact it became quiet a few moments after the officers knocked, the delay in responding to the knock on the front door, Bach’s furtive movements on the couch with his hands out of the officers’ sight, and the need to determine that appellant and any other occupant in the apartment did not have a weapon and were not destroying evidence provided exigent circumstances for the officers to enter the apartment to conduct a protective sweep to secure the scene for officer safety and to prevent the destruction of evidence.
“Officer safety” has become a catch all term for drug searches. Since anyone could potentially be armed the cops are allowed to violate your rights if they just state that they thought you could be armed. No one wants cops to get hurt so our appellate courts allow all sorts of nonsense in the name of officer safety. We allow law enforcement to create these frightening home invasion situations and then when the residents act scared, nervous, or move in any manner the cops have further justification to search.
You know what would really enhance “officer safety”? If we quit sending armed police squads into private residences to search for pot. There should be a “citizen’s safety” law to exclude these searches. Oh wait, that was the 4th amendment. Never mind.
Finally, none of this would have been necessary if Stern and his buddy had followed the “smoke pot and not get caught” rules from NORML. Never let your apartment smell like burnt marijuana, it’s a bad idea. Your neighbor might be a narc and the Plano PD might stage a car jacking to gain entrance.