§ 5.6.2 Examples of Exigent Circumstances and/or Emergency Aid Entries
1. Evidence of Burglary or Fire Emergency. If police discover evidence of burglary, such as a broken window or forced lock, exigent circumstances exist to enter. United States v. Valles-Valencia, 811 F.2d 1232, 1236 (9th Cir. 1987); State v. DeWitt, 184 Ariz. 464, 910 P.2d 9 (1996).
Firefighters may enter in response to emergency and seize evidence in plain view. An officer may later seize that evidence if it is in the location where the firefighters had been present. Mazen v. Seidel, 189 Ariz. 195, 940 P.2d 923 (1997) (firefighter’s warrantless entry into storage facility to fight fire in progress was lawful, and thus, police officer’s later entry and warrantless seizure of contraband in plain view was lawful under Fourth Amendment or Arizona Constitution; during fire clean-up and investigation, police did no more than enter where firefighters had entered and seize contraband that firefighters could have carried out and laid at their feet; the “whole case turns on the officers’ lawful right of access” and “the police entry was confined by both spatial and temporal boundaries of the firefighters’ entry, presence, and plain-view discovery”). Compare Michigan v. Clifford, 464 U.S. 287 (1984) (post-fire searches are not exempt from warrant requirement; once fire investigators had determined cause of fire, additional search of home could only have been for the purpose of finding evidence of arson and thus criminal warrant was required). “A burning building of course creates an exigency that justifies a warrantless entry by fire officials to fight the blaze. Moreover, . . . once in the building, officials need no warrant to remain for a reasonable time to investigate the cause of the blaze after it has been extinguished. Where, however, reasonable expectations of privacy remain in the fire-damaged property, additional investigations begun after the fire has been extinguished and fire and police officials have left the scene, generally must be made pursuant to a warrant or the identification of some new exigency.” Id. at 293.
2. Drugs - Burning Marijuana/Destruction of Evidence
a. Burning Marijuana. An officer who smells burning marijuana may enter the house without a warrant, to prevent destruction of evidence. State v. Kosman, 181 Ariz. 487, 892 P.2d 207 (App. 1995) (Div. 1); see also State v. Decker, 119 Ariz. 195, 580 P.2d 335 (1978) (odor of burning marijuana emanating from hotel room provided probable cause to believe crime had been or was being committed). See also State v. Sisco, 239 Ariz. 532, 373 P.3d 549 (2016) (strong odor of fresh marijuana “suffices to establish probable cause for issuance of a search warrant . . . unless other facts would cause a reasonable person to believe the marijuana use or possession is authorized by AMMA [Arizona’s Medical Marijuana Act], thereby dispelling the probable cause that otherwise would exist”).
Arizona courts have not determined whether Arizona’s marijuana legalization statute has affected an Arizona officer’s right to enter a home based on the smell of burning marijuana. See, e.g., A.R.S. § 36-2852 (eff. Nov. 3, 2020) (authorizing “[p]ossessing . . . not more than six marijuana plants for personal use at the individual’s primary residence,” and stating that “the odor of marijuana or burnt marijuana does not by itself constitute reasonable articulable suspicion of a crime”). Simple marijuana possession remains illegal under federal law. See 21 U.S.C. § 844. The Supreme Court has ruled that whether a search is lawful under the Fourth Amendment is not governed by a statute. Virginia v. Moore, 553 U.S. 164, 128 S. Ct. 1598 (2008) (custodial arrest for minor traffic offense supported by probable cause was lawful under Fourth Amendment even though Virginia state law required officer to issue a summons).
b. Destruction of Evidence. See Kentucky v. King, 131 S. Ct. 1849 (2011) (upholding officers’ warrantless entry of suspected drug house, after officers knocked on door without a warrant, announced their presence, and then heard sounds of furniture moving around inside, which suggested possible destruction of evidence); State v. Aguilar, 28 Ariz. 401, 267 P.3d 1193 (App. 2011) (Div. 1) (insufficient exigent circumstances existed to justify the officer’s warrantless entry into the defendant’s motel room; although officers had probable cause based on a reasonable belief that criminal activity was taking place in the motel room, insufficient exigency existed to enter the room, distinguishing Kentucky v. King).
See also State v. Soto, 195 Ariz. 429, 431-32, 990 P.2d 23, 25-26 (App. 1999) (Div. 1) (Officers had probable cause to believe drugs were at a particular house. While a warrant was being sought, officers saw some people going in and out of the house. The officers secured the house by entering and conducting protective sweep. They also entered backyard, and one officer smelled marijuana by a shed and then entered and found marijuana in some boxes. The search warrant did not include this information, and it was later executed and the marijuana and other evidence seized. “In this case, there were no exigent circumstances to justify a warrantless entry;” court upheld seizure of evidence based on independent source; “[t]he marijuana was not seized as a result of the illegal entry into the home; officers learned of it from an independent source, upon whose untainted information a valid warrant was obtained”); United States v. Kunkler, 679 F.2d 187 (9th Cir. 1982) (DEA agents observed a series of narcotics transactions, arrested the courier, and noticed that the supplier was “nervously looking up and down the street,” apparently concerned that the arrestee did not return in a timely manner. The DEA agents then, concerned with the prospect of flight or the destruction of evidence, entered through the ajar front door without a warrant and secured the premises for four hours until a warrant was obtained. The agents’ actions in securing the house were found to be justified by the exigent circumstances which indicated that the supplier, Kunkler, suspected that “something had gone wrong.”); United States...
