By Rob Poggenklass Tony Dunn Legal Fellow
blog-marijuana-500x280-v01_jpgVirginia law enforcement officers may now use the smell of marijuana to justify entering your home without a warrant.

In the recent case of Evans v. Commonwealth, the Supreme Court of Virginia decided that a mother’s delayed response in answering a door, “coupled with unspecific sounds of movement,” provided enough of an emergency for Norfolk police to disregard the Fourth Amendment’s warrant requirement. Under the court’s 4-3 ruling, these factors plus the smell of marijuana mean police can enter a home without a warrant.
Justice William Mims, joined by Justice Bernard Goodwyn and Senior Justice Leroy Millette, dissented. Justice Mims summed up the court’s decision this way: “Today, the majority permits the government to dispense with the constitutional requirement to obtain a warrant before entering a private residence if law enforcement officers have probable cause to suspect criminal activity, make contact with an occupant, and announce their suspicions before entering.”
How did we get here?
First, the facts of the Norfolk case. While on bike patrol on May 22, 2013, three uniformed police officers smelled a strong odor of marijuana coming from an apartment window. A detective who arrived later described the smell as “burnt” marijuana. What the officers smelled was not an issue in the case – all parties agreed it was marijuana.
The officers approached the apartment and knocked on the door three times. Each time, Evans’ mother answered. The first time, they asked her about the smell of marijuana coming from the apartment and asked if someone was smoking. The second time, the officers described her as “shaking” and “nervous.” She stated, “Ain’t nobody smoking weed in here,” then shut the door (the police said she “slammed” it). The smell of marijuana wafted through the air “like a gust of wind,” according to police.
The officers knocked a third time, announcing their presence. Five minutes passed, during which time police heard the “unspecific sounds of movement” coming from inside the apartment. Evans’ mother opened the door again but when she tried to close it, an officer held the door open and police announced they were coming inside to investigate.
Once police made their way into the apartment, they found two guns, ammunition, drugs and more than $1,000 in cash. Evans was charged with possession of morphine, possession with the intent to distribute cocaine, and possession of a firearm while being in possession of illegal drugs. A prosecutor dropped the morphine charge. After a Norfolk judge denied Evans’ motion challenging the search of the apartment, Evans pled guilty to the cocaine and gun charges and was sentenced to six years in prison, with all but 10 months suspended. Tevin Evans will be a convicted felon for life and will serve at least 8 ½ months in jail.
The Fourth Amendment generally prohibits warrantless searches of homes. That’s a big reason the amendment was written. But courts have allowed for warrantless searches of homes in the presence of 1) probable cause that a crime is occurring and 2) certain “exigent circumstances” – i.e., an emergency. The so-called emergency here was the possibility that the marijuana would be destroyed before police could get a search warrant.
As Justice Mims explains in his eloquent dissent, “The majority’s position leads inexorably to the conclusion that police may enter a residence without a warrant provided the officers announce to the occupants that they suspect criminal activity is occurring.” In other words, the majority is leading us to a place where Fourth Amendment protections aren’t worth the paper they’re written on.
Tevin Evans’ case should make Virginians angry for at least two reasons. First, the Supreme Court of Virginia’s decision renders the Fourth Amendment protection against warrantless searches of the home practically meaningless. Second, law enforcement’s war on the marijuana plant eviscerates the civil liberties of Virginians. While other states have moved to decriminalize or even legalize the possession of small amounts of marijuana, Virginia has ramped up its stupid war on a plant.
Federal law classifies both marijuana and THC (the main psychoactive ingredient in marijuana) as the most dangerous type of illegal drug. Under the Controlled Substances Act, marijuana and THC are Schedule I substances, alongside heroin and methamphetamines. Drugs listed under Schedule I have “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and “a lack of accepted safety for use … under medical supervision.” Because such assertions about marijuana are demonstrably false, 23 states and Washington D.C. have passed laws allowing medical marijuana use in the last 20 years. The federal classification of marijuana as a Schedule I drug is ridiculous.
Although federal law prohibits the possession, distribution, cultivation, medical use, or even scientific research of marijuana, many states have pushed back. Five states that do not allow medical marijuana have passed laws that prevent a person who possesses a small amount of marijuana from going to jail, making the offense more like a traffic infraction. Eleven other states have passed these decriminalization laws while also allowing medical marijuana. Eight more states continue to criminalize marijuana for recreational use while allowing medical marijuana. And four states – Colorado, Washington, Alaska, and Oregon, plus Washington D.C. – have passed laws that make it legal for people to use marijuana recreationally.
Our neighbor to the south, North Carolina, has decriminalized marijuana possession of up to half an ounce. Our neighbor to the north, Maryland, has decriminalized marijuana possession of up to 10 grams, while also allowing medical marijuana. And the District of Columbia allows both the recreational possession and cultivation of marijuana, though Congress has so far prevented the District from regulating the sale of it.
Despite all the action by our neighbors, Virginia has been reluctant to embrace change. First offense possession of marijuana carries up to a 30-day jail sentence and a $500 fine. A second offense is a Class 1 misdemeanor, which carries up to 12 months in jail and a $2,500 fine. Possession with the intent to distribute up to half an ounce of marijuana is also a Class 1 misdemeanor. Possession with the intent to distribute more than half an ounce is a Class 5 felony, which carries up to 10 years in prison.
Last year, a Virginia state senator introduced a bill to decriminalize small amounts of marijuana, much like Maryland and North Carolina have done. The Senate Courts of Justice Committee rejected the bill by a vote of 9-5. The General Assembly did pass a law that allows the medical use of certain marijuana oils but only for cases of intractable epilepsy.
As we’ve argued before, the commonwealth’s marijuana laws subject Virginians to racially discriminatory law enforcement, needlessly ensnare people in the criminal justice system for private conduct, and waste taxpayer dollars. Now, after the case of Tevin Evans, we can add another objection: Virginia’s marijuana laws threaten to undermine the Constitution. The actual emergency in this case isn’t the potential destruction of drugs – it’s the potential destruction of the Fourth Amendment. All because of law enforcement’s stupid war on a plant.