Denied entry isn't reasonable cause for search, seizure
Warrant required if only issue is refusal to admit police, court says

Howard Fischer Capitol Media ServicesArizona Daily Star | Posted: Wednesday, December 28, 2011 12:00 am

PHOENIX - Refusal to open the door to police doing an investigation is insufficient, by itself, for the officers to enter without a warrant, the Arizona Court of Appeals has ruled.

The judges unanimously rejected arguments by prosecutors that Department of Public Safety officers were justified in demanding that Pablo Aguilar open the door to the hotel room he was occupying. The officers said they had evidence someone in the room was selling marijuana.
But appellate Judge Philip Hall said the officers should instead have asked a judge for a warrant.
Assistant Attorney General Joe Maziarz said his office is studying the ruling and has not decided whether to appeal. He said, though, he believes that what the officers did fits within exceptions to constitutional provisions, laws and court rulings that spell out when police do not have to seek a warrant.
This case involves what the court describes as DPS officers, on a routine early-morning patrol, arresting a woman in a hotel parking lot for possession of methamphetamine. She told them she had purchased the drug from a room at the hotel.
That room, however, was found vacant.
Further investigation by the officers led to information that someone in another room was selling the drugs.
After the officers knocked on the door and identified themselves, someone looked out the curtains and a person inside asked who was there.
According to court documents one of the two officers said, "We need you to open the door," and one gave the occupant three seconds to comply. The door was opened about 30 seconds later and the officers said they saw and smelled what appeared to be marijuana, leading to the arrest of Aguilar.
At trial, Aguilar's lawyer sought to suppress the results of the search, saying his client merely submitted to the state's authority. Prosecutors conceded Aguilar was "forced to open the door" but argued the officers had legitimate reason for their actions.
A trial judge allowed the evidence and Aguilar was sentenced to eight years in prison.
Hall said the U.S. Constitution protects against unreasonable search and seizure. He said that generally requires officers to get a warrant, signed by a judge, before forcing their way into a building.
The judge said, though, that courts have said there is an exception when police have both probable cause that a crime is being committed as well as "exigent circumstances."
Here, Hall said, there was enough information for officers to have cause to believe drugs were being sold from Aguilar's room. But he said that other category requires something more.
For example, Hall said, officers do not need a warrant in responding to an emergency or when they are in "hot pursuit" of someone who runs into a building. And the law also permits police to enter if there is a probability that evidence will be destroyed.
Here, prosecutors said those "exigent circumstances" arose when a suspect peeked through a curtain and saw the police officers. But Hall said that, by itself is not enough to justify a warrantless search.
For example, he said there was no testimony that officers heard people moving things in the room or any other indication that evidence was being destroyed.


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