Apartment/House searches - how to avoid?

Discussion in 'Legal Issues' started by MonarchX, Feb 7, 2008.

  1. MonarchX

    MonarchX New Member

    Can a cop legally search your RENTED apartment or house without your permission if he smells MJ smoke? I think that seeing someone smoke lets them in the house and lets them search, right? But what about smoke/smell by itself?

    Does it matter if the apartment/house is owned or rented by you?
     
  2. ninfan77

    ninfan77 New Member

    You mean if nobody is home?

    I doubt they are gonna break down the door if they smell weed.... knock a few times, maybe leave a card.. but i don't believe anything would come of it if nobody answered the door/was unseen by LEO inside.

    If you are home .. it could be quite different. I'm not saying HIDE... but you see what i mean i hope.
     
  3. Buzzby

    Buzzby Buddhist Curmudgeon

    My understanding is that they can enter if the landlord gives the OK.
     
  4. ninfan77

    ninfan77 New Member

    Yea that's true ^ .
     
  5. phuzz01

    phuzz01 Sr. Member

    I have to disagree with buzzby and ninfan. A person has a reasonable expectation of privacy in their rented apartment, therefore the protections of the fourth amendment apply. I don't think a landlord has the authority to give consent to search the tenant's apartment in most cases.

    A landlord himself cannot simply enter a tenant's apartment whenever he wants to snoop around. There are restrictions involving reason for entry, scope of entry, and advanced notice. Certainly, a landlord cannot invite the police to enter in situations where he could not enter himself. But there are situations when he could invite the police to enter, such as during an eviction, or when he was entering for some kind of emergency.

    I haven't actually read any caselaw on this. It would also vary a little bit by state, since different states have different rules regarding landlords and tenants. States can be more restrictive of law enforcement than the federal constitution, but not less. But in most situations, a rented apartment is somebody's home, and therefore has all of the constitutional protections of the home.
     
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  6. FakeBoobsRule

    FakeBoobsRule Nice legs are a must (LC)

    Phuzz, you're hardly ever on here late night! Now what about the fact that for the 100th fictional scenario Monarch has posted it is about the smell of marijuana and whether or not a cop can search without consent. Wouldn't the officer need an exception to warrant requirement to conduct a warrantless search after smelling marijuana?
     
  7. 29yeartoker

    29yeartoker New Member

    I manage a large apartment community and have been in the industry for years. If I walk by an apartment and I smell weed coming from that apt. I can and will send them a lease violation notice. In my state I have to put it on the inside of the door. I do not have the right to search there apartment nor will a judge give the police a warrant to search the apartment only on the grounds that there is a marijuana smell coming from the apartment. As management we cannot enter the apartment just because we want to. We must have reason and we must leave something in the apartment letting the resident know that we were there and why. Police can't do that either. In other words if I was to ask a cop to search an apartment just because I smell marijuana coming from a certain apartment they would say "No they can't do that as they would need a warrant and the judge will not waste time, manpower and tax-payer's money on only a smell". The police have bigger fish to fry if you know what I mean. If there is suspicion of selling drugs then the police will watch that apartment and gather evidence to hand to the judge to get a search warrant. That's when they can break the door in if the resident doesn't open the door. Of course I don't want my owners property damaged so I will give them the key as they have a warrant and I cannot interfere with police matters. Most of the time they don't even come to the leasing office to tell us anything as they don't want their investigation blotched as they don't want to take the risk of the office staff tipping off the resident.

    Bottom line is the only thing that could really happen is you can face eviction and even that depends on what your lease states. Even entry to an occupied dwelling depends on what the lease agreement states. I would suggest you read your lease if you have one so you will know your rights as well as the landlords.

    I hope that answered your question.
     
  8. kinghelwig

    kinghelwig New Member

    MGMT. vs. weed smell in apt

    the landlord can enter in an emergejncy, fire, someone dead or fell and cant get up,same way with cops if they say we smell pot it's over thats probable cause,and then they dont need a warrent,or you look suspicious can we search you,if you are on probation or parole they dont need a reason,they dont have the right to question you,if they stop ypu on the streets and start asking alot of questions simply say If I'm not under arrest may I leave? They are uasually are looking for information,drugs, people that sell them what ever dont answer questions other than what you are being stopped for,they may use scare tactics well we can get a warrent,fine get one,if you dont consent to this search I'll be watching you,anything to scare you now if your sitting in your pad and they walk up and its obvious then you dont have a leg to stand on,I was smoking a ciggarrette outside my apt a cop drives up gets out of car and says,what are you doing here,I answered,then he asks has anyone in this building tried to sell you any drugs? Discussion over I showed him my I.ED. and didnt say another word,I came back negative for everything,dont worry about smell,they have to prove it,but you might get thrown out,the new laws are not nice.::cool:
     
  9. b1s8e3

    b1s8e3 Subscriber

    Wow, what a mighty wall of text.
    Wrong, not with an apartment. Smell can be used in conjunction with other probable cause to gain a search of a vehicle, not an apartment.
     
  10. ilovealbertwalker

    ilovealbertwalker New Member

    its weird you post this cause this just happend to me and my husband. the cops came to my rented apartment and the cops came from a smell complaint. smelt the weed outside my bedroom window, knock on my door and told us whats up they said if you dont let us in we will come back witha search warrent, there were 3 cops here already and um you can say no but if they want to come in, they will get the warrent. we had to flush over and ounce and they took our scale. and our plants, they will search too hah it sucks
     
  11. MonarchX

    MonarchX New Member

    You should have said NO to them...
     
  12. Andrew87

    Andrew87 Sr. Member

    Sometimes the police will "freeze the scene" in instances like this. That means they will temporarily detain you while they go get a warrant, therefore eliminating the possibility of destroying evidence.
     
  13. phuzz01

    phuzz01 Sr. Member

    I am not going to spend the time quoting other posts, but I will clear up some misinformation that has been posted:

    1) Unlike a vehicle, police cannot conduct a warrantless search of an apartment even with probable cause, unless they have consent or exigent circumstances. In Carroll v. US, the US Supreme Court said that the mobile nature of vehicles means that evidece will likely be lost if police go to get a warrant. Therefore, the Supreme Court said, there are automatically exigent circumstances when a vehicle is involved. In contrast, your apartment isn't going anywhere, so there would have to be some other form of exigency for the police to search without a warrant (i.e. someone is in danger, or there is some reason to believe that evidence is currently being destroyed).

    2) Smell alone can be enough evidence for probable cause to get a warrant. If a police officer has sufficient training and experience, he can distinguish the odor of marijuana from other odors. So, if he smells the odor of marijuana coming from a certain apartment, a reasonable person would believe that it is more likely than not that marijuana is located in that apartment.

    3) If police officers have probable cause, but there is no consent or exigent circumstances, they have the right to secure the scene until the warrant is obtained. That means that all occupants in the apartment are removed, and the police have somebody sit at the scene until the warrant arrives. If the warrant is denied, the police go away and everyone is let back in.

    Sooooo, in our hypothetical situation where the odor of marijuana is coming from the apartment, the landlord cannot give the police permission to search. And, the police cannot search without consent of the tenant, exigent circumstances or a warrant. But, the police can get a warrant based on the odor alone. And, the police can remove all occupants and secure the apartment until the warrant arrives. I think that covers just about everything.
     
  14. 29yeartoker

    29yeartoker New Member

    That is interesting phuzz. I had never in my many years in the apartment industry have I ever seen the police get a search warrant based on a smell. I am sure it could be warranted since they smell it, there maybe more inside. I have only had one drug bust on one of the communities that I worked at and I wasn't present when the whole thing started so I don't know how it actually went down. All I saw there was the police searching the apartment and they only found maybe a half ounce and some bongs, pipes, etc. It was my understanding that the resident gave the police permission to search. They brought in the dogs to do a more thorough search but found nothing more. Unfortunately for the resident, I had to ask them to move immediately. I have never heard of the police getting a search warrant to search an apartment only on a smell. I guess it depends on the judge and district attorney if they actually want to give a warrant. I live in a big city and the police do have bigger fish to fry and I have been told that before by police officers themselves. Lazy cops....who knows. I do know that if I was to call the police on a smell of mj coming from an apartment, by the time they get there the smell and the residents could be gone and they wouldn't be able to do anything at all. On the other hand if I had a live on police officer and he walked by an apartment and smelled it then that maybe a different story.

    In my position I would just handle the problem myself by sending them a lease violation notice as I stated previously. Now if I thought they were dealing on my property it would be my duty to call the police and let them do their investigation from there.
     
  15. phuzz01

    phuzz01 Sr. Member

    I was not saying that the police are necessarily going to go through the hassle of getting a search warrant for a little marijuana. As you said, we have bigger fish to fry. I was saying that they could if they wanted to, since the odor of marijuana generally is enough for probable cause to get a warrant. Whether we bother or not is going to depend on the circumstances.

    We get a lot of calls from neighbors saying that they smell marijuana coming from so-and-so's apartment. If we go there and everyone is cooperative, we are likely to give them a warning and leave. But if we get there and the people are calling us pigs and telling us to **** off, then I have no problem removing everyone from the apartment for several hours, getting a warrant, and then arresting them all. You get what you give...
     
  16. 29yeartoker

    29yeartoker New Member

    I don't blame you there. I understand that some people act stupid when it comes to that sort of thing and actually that's the way some people choose to live their lives. They don't think before they react. Those people do deserve what they get!
     
  17. SeizeThis

    SeizeThis New Member

    Personal experience; Im still shaken by the events of last night. Not intending to disturb any neighbors there were many systems in place to avoid being annoying. fanning the air/smoke out the window with a large fan, and blowing smoke into a contraption of scented cloth/tissues did not work out very well. the cops shown up and immediately asked where the weed is at. there was a lot of denial on my part, and the cop expressed great miscomfort with my dishonesty. He began yelling at me, and frightened a room mate into panic attacks and later she had multiple episodes of seizures. Hardly worth it, hopefully on their account as much as ours. We were released on a warning. I made it very clear that there was no pot in the house, as much as they insisted they could smell it, and see that i was under the influence (redness in eyes). I told them i dont know what they are talking about and said that there wasnt any weed. They asked if we smoked it all, i told them we didnt have any pot. They confronted me about my dishonesty, repeated questions, i insisted we had incense, and that we had a guest who is no longer present, who smoked something outside, the contents of which are unknown to me. I proceeded to get ridiculed by the officers partner about me being stupid, that it was too obvious. and the other raising his voice aggressively, at which point i looked at my peers helplessly, and looked back at the officer, until he warned me not to make him come back, he informed me that marijuana is bad and left. Sometimes I wonder if the theory of evolution is flawed.. maybe from ape, no evolution has occured.
     

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