Warrantless Search of Hotel Room

US Supreme Court: Exceptions To Search Warrant Rules

The Fourth Amendment protects against unreasonable searches, and the Supreme Court has concluded that warrantless searches, even if probable cause is present, “are per se unreasonable” (Katz v. United States, 1967). Still, most commentators agree that searches under warrant have played a relatively minor part in law enforcement because of the number and breadth of exceptions to this requirement. Exceptions occur when it is impractical to secure a warrant or when there is explicit or implied consent to the search. Also, warrants may not be required when facts and circumstances preclude any reasonable expectation of privacy. Exceptions to the warrant rule include but are not limited to:

• searches incident to a lawful arrest or required to ensure safety, such as “stop and frisk” procedures;
• inspections by customs, border, and airport officials;
• searches made with the suspect's consent;
• searches made in compliance with lawful government actions, such as health inspections;
• searches of items in plain view; and searches of student belongings.

The same probable cause standard applies to all searches, under warrant or not (Brinegar v. United States, 1949.)

A long‐standing exception permits warrantless searches incident to a lawful arrest. Circumstances may not permit an arresting officer to obtain a warrant. But only the person under arrest and the immediately surrounding area are subject to search (Chimel v. California, 1969), although a cursory visual inspection of adjacent hiding places may be conducted as a protective measure (Maryland v. Buie, 1990). Unusual circumstances may justify a warrantless search even though no arrest is made. These exceptions rest on the need of law officers to protect themselves and others.


Strong Marijuana Smell Does Not Justify Warrantless Search of Hotel Room

On December 10, 2010, security personal at a Los Angeles hotel called police about a reported burglary of a laptop computer and a Blackberry cell phone. Hotel personal believed the suspects were two women staying at the hotel.

Police went to the women’s hotel room. At the door, police noticed a “strong smell” of marijuana. Police then knocked on the door and one of the women answered. Police then asked the occupants of the room to exit the room, which they did.

Police then entered the room without a warrant and searched it. Police found the missing items. The Blackberry was in plain view. The laptop, however, was under a mattress and not in plain view. The two women were then arrested and later charged with burglary (Penal Code § 459) and grand theft (Penal Code § 487 (a)).

In response to the charges, the two suspects filed a motion to suppress under Penal Code § 1538.5, arguing that there had been no exigent circumstances to allow a warrantless search or a protective sweep of the hotel room. The trial court denied the motion, reasoning that exigent circumstances did exist to prevent destruction of the marijuana. The trial court did, however, suppress evidence of the laptop because it was not found in plain view.

The defendant then pled no contest to burglary (Penal Code § 459) and grand theft (Penal Code § 487 (a)). The trial court sentenced each defendant to three years of formal probation.

The two defendants then appealed the trial court’s ruling on the motion to suppress, arguing, again that the warrantless entry was unlawful (and therefore all evidence from the search must be suppressed), as there were no exigent circumstances to justify police proceeding without a warrant.

The Second Appellate District, in People v. Rosland Nadine Torres (2012 DJDAR 5755), found that the trial court had erred. The appellate court started its analysis from the principle that a trial court’s denial of a motion to suppress will be upheld if the trial court’s “factual findings, whether express or implied, are supported by substantial evidence.”

The appellate court then noted that a hotel room is considered a home for purposes of the Fourth Amendment. An exigent circumstance is necessary for an entry without a warrant regardless of the strength of the cause to arrest. Exigent circumstances could be the “hot pursuit” of a suspect into a home, imminent destruction of evidence, the need to prevent a suspect’s escape, as the risk of danger to police or others nearby.

The appellate court next noted that entry into a home to preserve evidence from imminent destruction is limited to evidence of crimes that are not minor. Here, there was no showing that the quantity of marijuana, i.e. more than 28.5 grams, was not minor. Police only smelled the odor of burning marijuana. Furthermore, no evidence was presented that indicated the officers had reason to fear the imminent destruction of evidence, or that there was a large quantity in the hotel room. Speculation would necessarily be involved to find such circumstances. Likewise, there was no evidence presented of any risk of danger to police officers or others, or that the suspects might flee.

Consequently, the Appellate Court reversed the judgment of the trial court. It remanded the case to the trial court with directions to grant defendant’s Penal Code § 1538.5 motion as to all items seized from the hotel room and vacate defendants’ no contest plea.

[Maryellen]

I'm surprised that the smell of something illegal going on wasn't enough to warrant a search. That's pretty incredible. I would have thought just the smell of a crime was enough.