State v. Duran

2007 UT 23
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
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State of Utah, No. 20051070
Plaintiff and Petitioner,
v.
F I L E D
Bernadette Duran,
Defendant and Respondent. March 9, 2007
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Seventh District, Price
The Honorable Bryce K. Bryner
No. 031700152
Attorneys: Mark L. Shurtleff, Att’y Gen., Jeanne B. Inouye,
Asst. Att’y Gen., Salt Lake City, Gene E. Strate,
Price, for plaintiff
Samuel S. Bailey, Price, for defendant
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On Certiorari to the Utah Court of Appeals
NEHRING, Justice:
¶1 The issue presented in this case is whether the
detectable odor of burning marijuana creates an exigent
circumstance permitting a warrantless search of a residence. We
hold that it does not.
BACKGROUND
¶2 This case presents a purely legal issue. Our
recounting of the facts is therefore spare. On April 22, 2003,
the brother and the mother of Lance Horvath called police
officers to report that people were smoking marijuana inside
Mr. Horvath’s trailer, which was located on his mother’s
property. When officers arrived about forty minutes later, the
brother reported that he had personally observed people in the
trailer smoking marijuana and warned that, although Mr. Horvath
was away at the time, he kept guns in his trailer and had
threatened to use them against the police.

No. 20051070 2
¶3 The police officers later testified that as they
approached the trailer, they could smell the faint but
unmistakable odor of “marijuana leakin’ out of the cracks of the
trailer.” Concluding that time was of the essence because the
occupants were “in the very process of smokin’ up the evidence,”
the officers entered the trailer without first obtaining a
warrant. Inside the trailer, the officers found controlled
substances, several firearms, and three individuals, including
the defendant, Bernadette Duran.
¶4 At trial, the court denied Ms. Duran’s motion to
suppress the evidence found in the warrantless search. The court
of appeals reversed, holding that although the odor of marijuana
to which the officers testified gave rise to probable cause for a
search, it did not create exigent circumstances that would
justify their warrantless search of the trailer. State v. Duran,
2005 UT App 409, ¶ 23, 131 P.3d 246.
ANALYSIS
¶5 On certiorari, we review the decision of the court of
appeals, not that of the trial court. State v. Krukowski, 2004
UT 94, ¶ 10, 100 P.3d 1222. The issue of whether a warrantless
search of a residence is reasonable under the Fourth Amendment is
a question of law, which we review for correctness. See State v.
Peterson, 2005 UT 17, ¶ 8, 110 P.3d 699.
¶6 We decline to grant the aroma of burning marijuana a
place on an exclusive, limited roster of exceptions to the
requirement that a warrant be secured before a lawful search can
occur. The Fourth Amendment to the United States Constitution
guarantees “[t]he right of the people to be secure in their . . .
houses . . . against unreasonable searches and seizures.” As the
United States Supreme Court has stated, “physical entry of the
home is the chief evil against which the wording of the Fourth
Amendment is directed.” United States v. U.S. Dist. Court, 407
U.S. 297, 313 (1972). Accordingly, “searches and seizures inside
a home without a warrant are presumptively unreasonable,” even
when officers have probable cause to search. Payton v. New York,
445 U.S. 573, 586 (1980).
¶7 The Supreme Court has recognized, however, a few narrow
exceptions to this warrant requirement. Under the exigent
circumstances exception, officers may search a residence without
a warrant where a “specially pressing or urgent law enforcement
need,” Illinois v. McArthur, 531 U.S. 326, 331 (2001), makes “the
warrantless search . . . objectively reasonable under the Fourth
Amendment,” Mincey v. Arizona, 437 U.S. 385, 394 (1978). The

3 No. 20051070
Court has identified prevention of the “imminent destruction of
evidence” as one such pressing need. Minnesota v. Olson, 495
U.S. 91, 100 (1990).
¶8 We, too, have “sustained warrantless entries where the
circumstances indicated that evidence might be destroyed or
removed if entry was delayed until a warrant could be obtained.”
State v. Ashe, 745 P.2d 1255, 1258 (Utah 1987). To be clear,
this does not include “the mere possibility that evidence may be
destroyed.” State v. South, 885 P.2d 795, 800 (Utah Ct. App.
1994), rev’d on other grounds, 924 P.2d 354 (Utah 1996). Rather,
police officers must have a reasonable belief that the
destruction of evidence is sufficiently certain as to justify a
warrantless entry based on exigent circumstances. We find,
however, that the detectable odor of burning marijuana is
inadequate, standing alone, to support such a reasonable belief.
The aroma of burning marijuana must be accompanied by some
evidence that the suspects are disposing of the evidence, as
opposed to casually consuming it, before law enforcement
officials may be lawfully justified in claiming the benefit of
the exigent circumstances exception.
¶9 We decline to pare back a fundamental constitutional
guarantee where the commission of an offense--in this case,
smoking marijuana--involves as its incidental but inevitable
consequence the destruction of evidence. According to the
testimony of the police officers who conducted the warrantless
entry in this case, the marijuana was being “destroyed” by
persons who were “in the very process of smokin’ up the
evidence.” This is an odd departure, indeed, from the
circumstances that typically attend destruction of evidence
exigencies. In most instances, an exigency arises from the
possibility that persons, alerted to the presence of law
enforcement officials seeking to execute a search warrant, might
understandably rid themselves of any trace of contraband. See
United States v. Tobin, 923 F.2d 1506, 1511 (11th Cir. 1991) (en
banc) (holding that exigent circumstances were present where “the
[law enforcement] agents could reasonably conclude from the
defendants’ hurried actions and furtive looks that [they] were
either aware or afraid that someone was watching them [and]
[d]estruction or removal of . . . the narcotics was therefore a
possibility” (footnote omitted)). The reverse is also true, as
it is well-recognized that “[c]ircumstances are not normally
considered exigent where the suspects are unaware of police
surveillance.” Id. at 1511; see, e.g., United States v. Elkins,
300 F.3d 638, 656-57 (6th Cir. 2002); United States v. Davis, 170
F. Supp. 2d 1234, 1239 (M.D. Fla. 2001).

No. 20051070 4
¶10 A person bent on destroying contraband may well turn to
ingesting it to avoid its detection. See State v. Alverez, 2006
UT 61, 147 P.3d 425. It is nevertheless unlikely that a person
in possession of contraband, like marijuana, would be so consumed
by paranoia as to dispose of the contraband by ingestion, having
no reason to suspect that law enforcement might be alerted to the
illegal activities. We are unable, therefore, to identify the
existence of an exigency under circumstances that require
equating the consumption of contraband with destruction of
evidence where the persons affected by the search had no
apprehension that law enforcement had them in their sights.
¶11 In this case, Ms. Duran made no effort, hurried or
otherwise, to dispose of her marijuana in order to prevent its
discovery by law enforcement. Until the warrantless entry of law
enforcement officers into the trailer, she remained unaware of
any police involvement and had no objective reason to “destroy”
the marijuana, as that term is commonly understood. In fact, it
is likely that no one involved in this episode was more dismayed
at the prospect of the destruction of “evidence” than Ms. Duran.
¶12 Further, nothing in the record suggests that law
enforcement had reason to believe that the evidence of drug use
would be destroyed if the officers had delayed their intrusion
until they secured a warrant. Because Ms. Duran was unaware of
the police presence, it is unlikely that all traces of her drug
use would have disappeared from the trailer in the time it took
law enforcement to obtain a warrant. Presumably, even if some of
the marijuana was destroyed through the process of smoking while
law enforcement sought a warrant, some evidence of drug use would
linger in the form of residue, smoking paraphernalia, and some
quantity of unsmoked marijuana. The officer’s statement that
Ms. Duran was “smokin’ up the evidence” nicely underscores the
obvious conclusion that the officers were not confronting the
conflagration of the contraband that a reasonable person would
associate with the destruction of evidence.
¶13 We also decline to sanction the warrantless search in
this context because we fear that it would be difficult to leash
warrantless searches in other contexts in which consumption and
destruction of evidence merge. It is certainly not far-fetched
to envision law enforcement officers exploiting the rationale
that consumption of contraband is also evidence destruction to
justify warrantless searches in other contexts. After all, the
exigency present here is not appreciably different from a report
of consumption of alcohol by underage persons in a dwelling.
Like smoking marijuana, underage drinking is a jailable offense
crime in which the criminal act involves simultaneous consumption
of contraband and destruction of evidence. See Utah Code Ann.

5 No. 20051070
§§ 32A-12-104, -209(1) (2005). Also, olfactory-based probable
cause could, under a doctrine that equated consumption of
contraband with destruction of evidence, permit a law enforcement
officer to claim exigent circumstances to justify a warrantless
search to apprehend eighteen-year-olds believed to be smoking
tobacco. See Utah Code Ann. § 76-10-105 (2006) (“Any 18 year old
person who buys or attempts to buy, accepts, or has in his
possession any cigar, cigarette, or tobacco in any form is guilty
of a class C misdemeanor . . . .”).
¶14 In short, the costs that would accompany a merger of
consumption of contraband and destruction of evidence--i.e., an
increase in questionable warrantless searches, a corresponding
decrease in personal privacy, a decreased incentive for law
enforcement to seek a warrant before conducting a search, and a
further erosion of Fourth Amendment protections--outweigh the
benefits accruing to the state in more efficient law enforcement.
As a society, we have little to lose and much to gain by
insisting that the definition of “imminent destruction of
evidence” necessary to create an exigent circumstance be limited
to the common understanding of evidence “destruction”--disposal
of, not consumption of, contraband.
¶15 Contributing to our confidence that this is the correct
conclusion is our belief that we should, as a general
proposition, narrowly construe the reach of exceptions to
fundamental constitutional rights. This principle is well-suited
to this occasion. While it is true that marijuana is destroyed
during the process of smoking, we hold that this does not,
without more, create an exigent circumstance sufficient to
justify a warrantless search.
¶16 The State looks to Illinois v. McArthur to support the
proposition that a warrantless search based on exigent
circumstances can be justified when the suspected crime giving
rise to the search is a “jailable offense.” 531 U.S. 326 (2001).
This is correct, but McArthur also supports our position that,
although probable cause of marijuana use could justify a
warrantless search based on exigent circumstances, no exigency
was present here. In McArthur, the United States Supreme Court
held that it was reasonable for law enforcement officers to
prevent a man from entering his home while they took the steps
necessary to obtain a warrant when they had probable cause to
believe that the man had marijuana in his home. Id. at 333.
Noting that the Fourth Amendment’s “‘central requirement’ is one
of reasonableness,” the McArthur Court “balance[d] the privacy-
related and law enforcement-related concerns to determine if the
intrusion was reasonable.” Id. at 331 (quoting Texas v. Brown,
460 U.S. 730, 739 (1983)). The Court held that the seizure was

1 The Court also explained that allowing conditioned reentry
based on police observation would also be reasonable while steps
were taken to promptly obtain a warrant. Illinois v. McArthur,
531 U.S. 326, 335 (2001).
No. 20051070 6
reasonable based on four factors: (1) the police had probable
cause to believe that there was evidence of “crime and
contraband” in the home, i.e., illegal drugs; (2) the police had
good cause to believe that the suspect would destroy the evidence
before they could obtain a warrant, unless he was restrained;
(3) “the police made reasonable efforts to reconcile their law
enforcement needs with the demands of personal privacy” by
“neither search[ing] the trailer nor arrest[ing the suspect]
before obtaining a warrant”; and (4) the police blocked entry to
the home for only a limited amount of time--two hours. Id. at
331-32. Further, the Court explained, “We have found no case in
which this Court has held unlawful a temporary seizure that was
supported by probable cause and was designed to prevent the loss
of evidence while the police diligently obtained a warrant in a
reasonable period of time.”1 Id. at 334.
¶17 When applied to this case, the relevant considerations
identified in McArthur do not support a finding of exigency.
While no one disputes that the odor of burning marijuana was
evidence of a “crime or contraband” in the trailer, the only
basis upon which the police could conclude that Ms. Duran would
“destroy” the evidence before a warrant could be obtained was
their belief that she would “smoke it up.” Unlike Mr. McArthur,
who knew that the police were onto him, Ms. Duran did not know
that law enforcement officers were aware of the presence of
marijuana in the trailer until they broke through the door. Most
significantly, there is no indication that the law enforcement
officers engaged in any effort, much less a reasonable one, to
reconcile their law enforcement needs with the demands of
personal privacy. In fact, to the extent that the officers
engaged in any assessment of competing interests related to the
acquisition of a warrant, they balanced their desire to avoid the
inconvenience of seeking a warrant against Ms. Duran’s privacy
interests and concluded that convenience was more important. We
cannot countenance this attempt at “reconciliation” and at the
same time keep faith with our duty to interpret and apply
fundamental constitutional guarantees. We therefore affirm the
court of appeals.
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7 No. 20051070
¶18 Chief Justice Durham, Justice Durrant, and Justice
Parrish concur in Justice Nehring’s opinion.
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WILKINS, Associate Chief Justice, dissenting:
¶19 I respectfully dissent.
¶20 This case is factually different in a major way from
Illinois v. McArthur, 531 U.S. 326 (2001). In McArthur, the
Supreme Court addressed a circumstance where the defendant and
the “evidence” were physically separated, and remained so
(through police action) for the two hours necessary for police to
obtain a warrant to enter and search the residence. In this
matter, however, Ms. Duran and her companions were in a small
trailer with the “evidence” and the police were on the outside.
There was no way for the police to separate the defendant and her
companions from the illegal drugs for the time necessary to
obtain a warrant without first alerting them to the presence of
the police. Alerting the defendant to the presence of the police
would certainly have increased the risk of destruction of the
evidence, as well as increasing the danger of a violent
confrontation.
¶21 Additionally, the officers had no way of knowing that
the defendant and her companions were unaware of the presence of
law enforcement prior to the time of entry, nor that they would
have remained unaware during the time necessary to secure a
warrant. We also know nothing of the time actually necessary to
obtain a warrant. The fact that officers did not seek a warrant
does not answer questions regarding how long it would have taken
under these circumstances, or whether or not the presence of law
enforcement would have been observed or discovered by the
occupants of the trailer during that period.
¶22 We do know that when officers arrived they were
reliably informed that there was illegal drug use going on in the
trailer, there were guns in the trailer, and that in addition to
Ms. Duran there were other adults in the trailer. We also know
that the officers were informed that the tenant to whom the
trailer had been rented was not then present, but that he owned
the guns, was known to be violent, and could return at any time.
¶23 Under these circumstances the officers did not seek a
warrant. Much of the discussion focuses on the reasons given
after the fact for why the officers sought no warrant in this
instance. I fail to see the relevance of the reasons given.
What should matter in our review is the sum total of objectively

No. 20051070 8
observable facts presented to the officers at the time and upon
which they could act.
¶24 In addition to the initial report from the on-the-scene
witnesses, the officers testified that they smelled the
unmistakable odor of burning marijuana. The officers testified
that they believed the defendant and her colleagues were “smokin’
up the evidence” since they smelled marijuana smoke and saw smoke
“leakin’ out of the cracks of the trailer.” What quantity of
marijuana was in the process of being burned, by whom, and with
what end in mind, was unknown to the officers. Without being
able to observe the burning first hand, they had only the odor,
the smoke, and the report made by the informant. The officers
had no other data upon which to rely in making their decision
about whether or not to delay their enforcement action while a
warrant was obtained.
¶25 Supposition does not replace fact. We simply do not
know now, nor did the officers at the time know, what Ms. Duran
and her colleagues were doing, thinking, or most concerned with,
when the police made their decision to enter. Moreover,
regardless of explanations given later by the officers, if the
facts at the time justified warrantless entry, the trial court
was correct in denying the motion to suppress evidence found in
the trailer when police did finally enter. If not, it was not.
¶26 On certiorari we have agreed to address the limited
question of whether or not the detectable odor of burning
marijuana alone is enough to justify an exception to the warrant
requirement of the Fourth Amendment. My colleagues say that it
is not, as did the court of appeals. I say that it may be, and
that in this particular case it is.
¶27 As we said in State v. Ashe, warrantless entries may be
sustained “where the circumstances indicated that evidence might
be destroyed or removed if entry was delayed until a warrant
could be obtained.” 745 P.2d 1255, 1258 (Utah 1987) (emphasis
added). The circumstances must be viewed from the perspective of
law enforcement officers at the time the decision to seek or not
seek a warrant is made, not in the clear reflected light of
appellate review after the fact.
¶28 What matters in our review is the factual circumstances
of the entry. In a case where illegal drugs are being burned out
of sight but not out of smell, and where the quantity of drugs is
unknown to the officers, a presumption that the drugs are being
destroyed rather than merely consumed is not unreasonable.
Adding knowledge of firearms on the premises, a violent tenant
whose whereabouts and time of return are unknown, and multiple

9 No. 20051070
parties engaged in the illegal activity, I would uphold the law
enforcement decision to proceed without a warrant. In addition,
we must consider the passage of time already noted between the
observation of the activity by the informant and the arrival of
the officers, and the additional time required to secure the
warrant. With the drugs, the guns, and the defendants inside,
and the officers outside, passing time increases the likelihood
that the officers will be discovered, the absent tenant may
return, or the drugs may be disposed of by means other than mere
recreational use.
¶29 Any close call must go to securing a warrant. The
Fourth Amendment requires no less. However, this was not a close
call. Given facts like those presented to the officers in this
case, and where, as here, probable cause to secure the warrant is
unquestionably present, I believe the Fourth Amendment permits
the entry without a warrant. I do not find such police action to
be unreasonable. To the contrary, I find it reasonable, and
consequently not proscribed by the Fourth Amendment’s ban on
unreasonable searches. Protecting the rights of citizens does
not necessarily require the handcuffing of police. I would allow
law enforcement agents to consider the circumstances and act as
objective reasonableness dictates.
¶30 I would reverse the court of appeals, affirm the trial
court, and answer the question presented on certiorari with
“perhaps.”
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