Appeals court rules against police in drug case - East Valley Tribune: Arizona

Appeals court rules against police in drug case

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Posted: Tuesday, December 27, 2011 5:44 pm | Updated: 12:19 pm, Tue Jan 3, 2012.

Someone’s 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 the 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 that someone in that 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 which 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 room 211 of the hotel.

That room, however, was found vacant.

Further information, including from the hotel manager and people stopped in the parking lot with a glass pipe, led to information that someone in room 214 was selling the drugs.

After the officers knocked on the door and identified themselves, someone peeked out from 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 Pablo 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 that 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, 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 that 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.

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.

“Instead, someone simply looked outside and observed police officers and defendant chose not to answer the door,’’ Hall wrote for the appellate court. “When law enforcement officers who are not armed with a warrant knock on a door, the occupant has no obligation to open the door or to speak.’’

The judge said the peek through the curtain and refusal to open the door was not enough to justify the warrantless search.

Maziarz agreed — up to a point.

He said one thing the court did not consider was whether the officers, based on prior experience, know that suspects are likely to destroy evidence once they see police at the door.

“It’s almost common sense,’’ Maziarz said.

He acknowledged that refusal to admit police or open the door does not eliminate the need for a warrant.

“But here you had the guy peeking out,’’ Maziarz said.

“And you had all this other information about drugs being sold out of this room,’’ he continued. “What you didn’t have was the officer saying (that) based upon our experience, when someone doesn’t answer the door right away, they obviously know we’re there, they’re destroying evidence.’’

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