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Warrantless Search of Apartment Based on Officer Viewing Marijuana Through Glass Door Unconstitutional

Search apartment Marijuana no warrant ohio lawyer

One recent Ohio case – State v. Ambrosini, 2015-Ohio-4150 – highlighted the importance of knowing Ohio search and seizure law in a marijuana possession case.

In this case, police smelled marijuana and saw though a glass door someone smoking marijuana inside an apartment.  The police entered the apartment – without a warrant – claiming the “plain view” or “exigent circumstances” exception to the warrant requirement.

The court found that the police’s search was unconstitutional.  To enter and search the apartment, the police had to first get a warrant.  Because the search was unlawful, all evidence of marijuana or paraphernalia seized was excluded from evidence at trial.

Search apartment Marijuana no warrant ohio lawyer

Police Respond to Loud Music and Smell / See Marijuana

Around 5:00 am, two police officers responded to a report of loud music and alleged drug use at an apartment.  Upon arrival, the officers entered the apartment complex and, following the smell of burning marijuana and music, eventually arrived at the defendant’s apartment.

The apartment had a rear sliding door facing a courtyard shared with the apartment complex.  Upon arrival, one officer went to the front door and one went to the rear sliding door.

After detecting the smell of marijuana through the small opening in the glass sliding door, the officer observed a glass pipe and a loose green substance which appeared to be marijuana on a kitchen table.

The officers then announced their presence, entered the apartment, seized the alleged marijuana and glass pipe, and cited the defendant (who was visiting) and the apartment resident for marijuana possession in violation of R.C. 2925.11 and possession of marijuana paraphernalia in violation of R.C. 2925.141(C), each minor misdemeanor offenses.

Motions to Suppress 

The defendants filed motions to suppress.

Exigent Circumstances 

At the suppression hearing both officers testified that they felt an exigent circumstance existed, specifically the destruction of evidence, which allowed them to enter the apartment without a warrant. Both officers also asserted their right to enter without a warrant on the grounds the alleged marijuana use occurred in plain view.

Warrantless Searches Allowed Only in Exigent (Emergency) Circumstances

Unreasonable searches and seizures are constitutionally prohibited under the Ohio and U.S. Constitutions.  For a search or seizure to be reasonable, the officer must have a warrant or one of the recognized exceptions to the warrant requirement must apply.

The Ohio Supreme Court has recognized seven exceptions to the warrant requirement:

  1. search incident to a lawful arrest;
  2. consent signifying waiver of constitutional rights;
  3. the stop-and-frisk doctrine;
  4. hot pursuit;
  5. probable cause to search and the presence of exigent circumstances;
  6. the plain-view doctrine, or
  7. an “administrative search,”

Here, the trial court found that the police acted properly by entering the apartment upon witnessing the defendants smoking marijuana in plain view.

Plain View Exception Does Not Apply Where Officer Saw Marijuana Inside Apartment Through Window

The warrantless seizure by a law enforcement officer of an object in plain view does not violate the Fourth Amendment if:

(1) the officer did not violate the Fourth Amendment in arriving at the place from which the object could be plainly viewed,

(2) the officer has a lawful right of access to the object, and

(3) the incriminating character of the object is immediately apparent.

Here, the police officers were lawfully in the common public area outside the defendant’s apartment. However, the defendant had an expectation of privacy inside the apartment and, thus, the officers had no lawful right to be inside the apartment.

Other examples of similar cases:

  • State v. Alihassan, 10th Dist. No. No. 11AP-578, 2012-Ohio-825, ¶ 20 – While officer’s “seeing the drugs” in common area outside defendant’s apartment gave him probable cause to obtain a search warrant, the plain view warrant exception didn’t apply because officer “had no right to be inside the apartment” and no exigent circumstances existed.
  • State v. Robinson, 103 – 4 – Ohio App.3d 490, 494, 659 N.E.2d 1292 (1st Dist.1995) – Police cannot enter without a warrant based solely on smelling burning marijuana coming from the apartment.

Therefore, in order for the officers to go inside the apartment without a warrant, some exigent (emergency) circumstance must have existed.

Exigent Circumstances Does Not Apply

Imminent destruction of evidence of a minor offense (such as flushing or destroying marijuana) is insufficient to create an emergency for the exigent circumstances exception to apply.

The odor of burning marijuana that escaped through the open door provided probable cause only as to the commission of a minor misdemeanor (drug abuse involving the possession of less than one hundred grams – R.C. 2925.11(C)(3)) that carries only a fine – the most minor offense possible.

Therefore, the imminent destruction of evidence of a minor-misdemeanor drug abuse is insufficient to justify exigent circumstances.

Thus, all evidence of marijuana or paraphernalia found inside the apartment must be excluded from evidence at trial.