Sunday, February 28, 2010

Are all circumstances "Exigent" these days?

The 4th Amendment and the person rights is secures have a long history.  At the very core [of the 4th amendment] stands the right of a man to retreat into his own home and there be free from unreasonable government instrusion.
Justice Potter Stewart

I just read a case out of the 4th Court of Appeals (San Antonio) - Wisenbaker v. State, No. 04-09-00364-CR.  The sole issue on appeal was whether the trial court erred in denying Wisenbaker's motion to suppress a warrantless search of his residence that led to the seizure of marijuana.  While the holding was not surprising (especially under the abuse of discretion standard), this case reflects the eroding nature of our 4th amendment rights.  It was once said that a man's home is his castle.  Well, I guess today's castles do not have moats and the drawbridge is always down.

Wisenbaker:  Appellant's neighbor called the police to report that appellant and friends were smoking marijuana on the premises.  The neighbor informed the police that the appellant "constantly" smoked marijuana (i.e. that was not an uncommon occurrence).  The officer peered through the neighbor's fence and viewed appellant holding what appeared to be a marijuana pipe.  Upon seeing this, the officer contacted his supervisor about obtaining a warrant and when he was told that it would take "a couple of hours," he decided to conduct a "knock and talk."  Appellant, however, had a sign on his front door directing visitors to "Go around, use other door."  Following that instruction, the officer went around to the door through which he had previously viewed appellant.  Before he had the chance to knock, he locked eyes with appellant, who appeared startled.  The officer then proceeded into the house and found several items of drug paraphernalia along with a usable quantity of marijuana.  The Court upheld the search, reasoning that "exigent circumstances" existed because appellant would have likely destroyed the evidence.

These facts, I'm sure, are pretty common throughout Texas.  No big surprises here.  My main concern is this:  If the neighbor told the police that the appellant "constantly" had people visiting and that they were "always" smoking marijuana, why then could the officer not wait to obtain a warrant before entering the house?  I realize that once appellant saw the officer, he was likely to destroy the evidence (wouldn't you), but why did the officer even need to confront appellant at that time.  The officer created an exigent circumstance where one otherwise did not exist.  It would have been perfectly reasonable for the officer to obtain a warrant and, based on the tip from the neighbor, he would not have been at any risk of being too late.

Many would even say that the 4th amendment died long ago.  I'm not so sure that I don't agree.