Mendez v. People

Justice HOBBS,

Dissenting:

I respectfully dissent. In my view, the Fourth Amendment’s guarantee against war-rantless searches and seizures should compel *284a holding quite different from that of the majority. We are dealing here with a war-rantless, non-consensual entry into a motel room when the police only had probable cause to believe that a non-jailable class two petty offense, possession of less than one ounce of marijuana, was taking place. The legislature has provided that punishment for this offense shall not exceed a $100 fine. See § 18-18-406(1), 6 C.R.S. (1999).

The trial court found, pursuant to People v. Bland, 884 P.2d 312, 316 (Colo.1994), that the marijuana offense was chargeable “pursuant to a summons and complaint and noncustodial arrest.” Nevertheless, it validated a midnight warrantless entry into a person’s abode to arrest him and secure evidence of this offense. In my view, Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), and People v. Miller, 773 P.2d 1053 (Colo.1989), control this case and require us to reverse the judgment of the court of appeals.

I.

The Fourth Amendment and Minor Offenses

A person residing in a motel room has the same expectation of privacy as in a home. See People v. Schafer, 946 P.2d 938, 944 (Colo.1997) (“Visitors and residents of Colorado who choose to stay in a hotel room, cabin, or tent away from their permanent abode presumptively enjoy Fourth Amendment protection.”) A search of any abode, including a motel room, without a warrant is presumptively- unreasonable. See People v. O’Hearn, 931 P.2d 1168, 1173 (Colo.1997).

It is well established that the prosecution must show both probable cause and exigent circumstances to justify a warrantless search of an abode. See, e.g., People v. Lewis, 975 P.2d 160, 166-67 (Colo.1999). Our cases recognize three categories of exigent circumstances: (1) “hot pursuit” of a fleeing suspect; (2) a risk of immediate destruction of evidence; and (3) a colorable claim of emergency threatening the life or safety of another. See, e.g., Lewis, 975 P.2d at 168. The majority holds here that a threat of destruction of evidence authorized the police to make a non-consensual entry into the room.

In my view, the three categories of exigent circumstances listed above begin the analysis, but they do not end it in cases such as the one before us. Here, we must also employ factors we previously identified as applicable to a totality of the circumstances review in Fourth Amendment cases. The majority fails to do that.

A. Gravity of the Offense in Probable Cause and Exigent Circumstances Analysis

Both Welsh and Miller require courts to weigh the gravity of the suspected offense in evaluating the validity of a warrantless entry, search, or seizure. See Welsh, 466 U.S. at 750-53, 104 S.Ct. 2091; Miller, 773 P.2d at 1057. As the majority observes, Welsh involved a warrantless entry at night into the home of a drunken driving suspect. The police officers in that case were concerned that delay associated with obtaining a warrant would allow the level of alcohol in Welsh’s blood to dissipate, essentially destroying the evidence of Welsh’s offense. The Court in Welsh assumed the reality of this risk for purposes of decision, but nevertheless found that the intrusion on the defendant’s reasonable expectation of privacy and his person, for the purpose of preserving evidence and taking him into custody, was unreasonable in light of the minor nature of the offense. See 466 U.S. at 754, 104 S.Ct. 2091.

Both Welsh and Miller drew upon Dorman v. United States, 435 F.2d 385 (D.C.Cir.1970) (en banc), for their analysis.1 The court in Dorman listed a number of factors to be considered in evaluating whether exigent circumstances authorize a warrantless entry. *285Our totality of the circumstances analysis under Miller follows Dorman in considering gravity of the offense as the first among seven relating to the validity of a warrantless entry, search, or seizure.

The six pertinent considerations outlined in Dorman are that (1) a grave offense is involved, particularly a crime of violence; (2) the suspect is reasonably believed to be armed; (3) there exists a clear showing of probable cause to believe that the suspect committed the crime; (4) there is a strong reason to believe that the suspect is in the premises being entered; (5) the likelihood exists that the suspect will escape if not swiftly apprehended; and (6) the entry is made peaceably. One additional factor is whether the warrantless entry is made at night.

Miller, 773 P.2d at 1057. These factors have garnered a substantial following in both federal and state courts. See 3 Wayne R. La-Fave, Search and Seizure, § 6.1(f), at 266 (3d ed.1996) (collecting cases).

In addition, Professor LaFave has observed that, “[o]ne factor which did not make the Dorman list but which is often of significance in this context concerns the preservation of evidence.... [I]t makes great sense to recognize that frequently an immediate entry to arrest is necessitated so that the defendant can be disabled from destroying or distributing evidence.” See LaFave, supra, § 6.1(f), at 274. Thus, the seven factors we identified in Miller can reasonably be supplemented by an eighth factor, namely whether immediate entry to arrest is necessitated so that the defendant can be disabled from destroying evidence.

Under the Miller totality of the circumstances test,2 which applies when the police urge that there was a need that “ ‘could not brook the delay incident to obtaining a warrant,’ ” Miller, 773 P.2d at 1057 (quoting Dorman, 435 F.2d at 392), all of the factors must be weighed. The trial court and we must determine, under the facts of the case, whether the prosecution has sustained its burden of proof that the warrantless entry, search, and seizure of the evidence and the defendant’s person was reasonable. Miller ⅛ first factor requires us to decide whether “a grave offense is involved.” In doing so, we do not look at what the police actually found after entering the room and searching Mendez; rather, we look to what the police officers could have reasonably believed the offense to be. This is an objective test, not one which indulges the suspicion and speculation of the officers.3

B. Probable Cause in this Case

The operative facts of this case are these: the officers smelled marijuana being burned and, therefore, had probable cause to believe that a person within the motel room was committing an offense for which the legislature had prescribed a mandatory notice and summons procedure as to which custodial arrest was prohibited, i.e., section 18-18-406(1) & (2).4 The police were in possession of no other information that would tend to show that Mendez possessed or was using drugs of a type or quantity that would trigger a jailable offense.

“Application of the exigent circumstances exception in the context, of a home entry,” said the Court in Welsh, “should rarely be sanctioned when there is probable cause to believe that only a minor offense ... has been committed.” Welsh, 466 U.S. at 753, 104 S.Ct. 2091 (emphasis added). Unless we are to read Welsh and Miller out of Fourth Amendment jurisprudence, we must take into account the gravity of the offense that *286the police officers had probable cause to suspect under the circumstances known to them.5 Unfortunately, the trial court and the majority, in my view, permit the police officers here — and others in similar circumstances —■ to indulge in the speculation and suspicion that a greater drug offense was being committed and that evidence of that offense might be destroyed. The majority states, for instance, that the “potential” gravity of the offense here was greater than that in Welsh. See maj. op. at 283. This approach effectively reverses the burdens imposed by the Fourth Amendment. It permits the prosecution to meet its burden other than through the facts objectively known to the police, contrary to the Fourth Amendment:

Once the defendant has presented evidence that he was arrested without a warrant, the burden shifts to the prosecution. ... The prosecution must prove two things: that there was probable cause to search, and that exigent circumstances existed to justify the warrantless entry. These two requirements are determined by evaluating the facts known at the time of the warrantless entry and search.

Miller, 773 P.2d at 1057 (citing People, v. Jansen, 713 P.2d 907, 911 (Colo.1985)). In sum, the prosecution bears the burden of establishing that there was probable cause to believe that more than a minor amount of marijuana was present in Room 209. It did not do so here.

Once it is established that the police lacked probable cause to believe that more than a minor amount of marijuana was present in Room 209, the result of this case is clear to me. Our legislature has prescribed a $100 fine for the offense the police officers could have reasonably suspected Mendez of committing. The fact that the legislature authorized only non-custodial arrest, and prescribed a notice and summons procedure by which to initiate prosecution, underscores the legislature’s determination that this offense is minor, triggering the application of Welsh and Miller.

Taking into account this legislative background leads me to conclude that Welsh prohibits the very actions the police took here: “the best indication of the State’s interest in precipitating an arrest, and ... one that can be easily identified both by the courts and by officers faced with a decision to arrest” is the penalty attached to the offense. Welsh, 466 U.S. at 754, 104 S.Ct. 2091.

A real threat of evidence destruction related to this de minimus possession offense may have existed in this case, depending upon whether Mendez had heard the police radios in the hall and therefore would have been alerted to flush evidence down the toilet.6 Nonetheless, the issue here, as in Welsh, is whether the threat of destruction of evidence *287related to this type of minor, non-jailable offense justified a warrantless entry.

C. Application of the Miller Factors

Application of the Miller factors plainly demonstrates that the prosecution did not meet its burden of sustaining the warrantless entry. First, the officers lacked probable cause to believe that a grave offense was taking place. Second, they had no reason to believe that Mendez was armed. Third, the offense they reasonably believed Mendez to be committing was non-jailable and subject only to a citation process. Fourth, they knew that a person within the room was committing that offense. Fifth, there was no likelihood here that the suspect would escape if not swiftly apprehended; the police had ample personnel to post at the door while one of their number sought a warrant from a judicial officer. Sixth, although the officers conducted themselves in a professional manner, they were operating contrary to the proscriptions of the statute defining and punishing the offense. Seventh, the warrantless entry, search, and seizure occurred at night. Eighth, had the police officers obtained a warrant, evidence of the offense would likely still be present, such as a pouch or packet from which Mendez withdrew the marijuana he was smoking, together with papers or an apparatus he was using, as well as any ash and lingering odor of burned marijuana.

Thus, a totality of the circumstances analysis utilizing the Miller factors should prompt reversal of the trial court’s order that allowed the prosecution to use the fruit of the illegal entry, search, and seizure of Mendez, his room, and his effects.7 As Justice Jackson observed,

It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it.... When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant.

Welsh, 466 U.S. 740, 751, 104 S.Ct. 2091, 80 L.Ed.2d 732 (quoting McDonald v. United States, 335 U.S. 451, 459-60, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (Jackson, J., concurring)).

II.

Accordingly, I would reverse the judgment of the court of appeals in this case. I respectfully dissent.

. To be clear, Welsh and Miller do not provide identical rules of law. Welsh places greater emphasis on the gravity of the offense than does Miller, though Miller does place it first among a number of factors to be considered in evaluating the validity of a warrantless search. The court in Miller adopted the Dorman factors wholesale, while the Court in Welsh, "[w]ithout approving all of the factors,” appears to have elevated the "gravity of the offense” factor by focusing singularly on it. Welsh, 466 U.S. at 752, 104 S.Ct. 2091.

. The majority cites Miller but fails to employ its factors in deciding this case.

. The Fourth Amendment analysis must focus on what the police knew at the time of entry. See Miller, 773 P.2d at 1057 (citing People v. Jansen, 713 P.2d 907, 911 (Colo.1986)). Here the police lacked even the "specific and articulable facts” required to uphold a finding of reasonable suspicion that more than a minor offense was taking place, much less to meet the more demanding standard of probable cause. See, e.g., People v. Canton, 951 P.2d 907, 910 (Colo. 1998). Evidence of criminal activity generated during a warrantless entry may not be used post-hoc to ratify an intrusion; a contrary rule would throw open the door to "fishing expeditions” by police.

.Like the majority, I reject Petitioner's contention that the legality of marijuana use for medical reasons negated probable cause in this case.

. The majority relies on a pre-Welsh Arizona Supreme Court case which held that the smell of burning marijuana may justify a warrantless search. As that court's discussion makes clear, however, the offense for which probable cause existed in that case was a felony: "In determining whether there was probable cause to believe that Decker had committed a felony, we concern ourselves only with what the officer knew before his entry to malte the arrest." State v. Decker, 119 Ariz. 195, 580 P.2d 333, 335 (1978). Here, our legislature has made possession of less than one ounce of marijuana a class two petty offense. We should not ignore our legislature's determination that the offense for which the officers had probable cause in this case was minor.

. Although I agree with the majority that there was a potential risk of destruction of evidence in this case, I disagree with their rationale for so concluding. In my view, the risk here was that the defendant would flush evidence down the toilet after hearing the police radios responding to the unrelated trespasser. The majority relies on State v. Decker, 580 P.2d at 336, a pre-Welsh case, for the proposition that the odor of burning marijuana emanating from Room 209 "indicated that evidence of a crime, that is, possession of marijuana, was in the process of being burned and thereby destroyed.” See maj. op. at 282. The court in Decker offered no analysis in support of this proposition, and no other jurisdiction has followed its holding. The majority then bridges, as justification for dispensing with a warrant, to the conclusion that smoking marijuana thus presents a situation where "the risk of tire loss of evidence is sufficiently great to justify an immediate warrantless search and seizure.” See id. at 282. The majority's rationale and .holding would allow an immediate arrest and warrantless search and seizure of an abode whenever police officers detect the smell of burning marijuana, without any additional facts. This holding runs contrary to the Fourth Amendment’s warrant requirement.

. I emphasize that this case is about requiring the authorities to have sought a warrant from an impartial magistrate before entering Mendez's room, not about mandating police to ignore the offense.