Appellate Court Boots Police Officers Arrest for Firearm and Marijuana Offenses when Police Officer Jumped a Fence into the backyard Based on the Smell of Marijuana and Tip that Firearm was Hidden inside the Backyard Dog House.

Prepared as a Public Service to the People by the Law Office of Vincent J. Sanzone, Jr., Esq.

State v. Peter Samuell, Appellate Division decided February 25, 2015.

In this case Trenton Police Officers jumped a fence of a residential home to investigate the alleged smell of marijuana and tip that a firearm was hidden in the backyard dog house.

When the police surrounded the house the officers requested that the suspect/owner of the house submit through a patdown through his chain link fence.  When the suspect refused the officers jumped the fence, detained the suspect and entered the house to conduct a warrantless search of the house.  In the house were found drug manufacturing equipment, large amount of marijuana and AK-47 machine gun.

The Superior Court trial court denied the defendant’s  upheld the warrantless search holding that the facts alleged were sufficient to establish probable cause for the warrantless search. The Appellate panel reversed the conviction and granted the defendant’s motion to suppress. In this case the prosecutor presented no evidence that an exception from the warrant requirement applied.

At this stage of the investigation there was no probable cause to detain the defendant and enter the home to continue their investigation.  Although the police were justified in jumping over the fence to conduct a Terry search for weapons of the suspect, which under the facts was articulable and reasonable, those same facts did not authorize the police to enter private property to further their investigation. State v. Jefferson, 413 N.J. Super. 344, 354-55 (App. Div. 2010).  As always, in New Jersey

"minimally intrusive" police conduct must occur at a location in which the police are authorized to be (non-private property). State v. Maryland, 167 N.J. 471, 486 (2001)

In this case there was no doubt that the fence around the backyard was intended to keep everyone out, including police officers investigating a crime.  This protected cartilage is part of the home. United States v. Dunn, 480 U.S. 294 (1987).

The court held that although the officers alleged “smell of  marijuana established probable cause to suspect unlawful possession of marijuana by one or more occupants of the house. But the smell of marijuana and the other information the police learned was still not sufficient for a warrantless police entry.”  In Welsh v. Wisconsin, 466 U.S. 740, 750, (1984), the United State Supreme Court held.  "Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries

While the alleged smell of marijuana provided probable cause, it did not establish exigent circumstances for a warrantless entry. Johnson v. United States, 333 U.S. 10, 12, (1948).  In that case an informant told police of persons smoking opium in a hotel room, which the court held was insufficient to enter the room without a warrant.

Again, State v. Holland, 328 N.J. Super. 1 (App. Div. 2000), rev d on other grounds, 176 N.J. 344 (2003), the court held that the alleged smell of burning marijuana may establish probable cause but not exigent circumstances to make a warrantless entry and to search when it shows nothing more than probable cause that a disorderly persons offense might have been or being committed.  Lastly, the court found no exigent circumstances as to why a warrant could not be obtained when the police had no evidence that a crime was being committed other than a disorderly person’s offense. State v. Holland, 328 N.J. Super. at 10-11; see also Welsh, 466 U.S. at 753-54.

It appears again that the New Jersey courts are closing another false excuse by law enforcement to justify an illegal search by claiming, “I smelled marijuana.”  Of course it is impossible for a defense attorney to disprove, what someone claims he or she smelled.  Law enforcement knows that a “smell” cannot be tagged into evidence.

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