Don’t Answer the Door

home florida.jpgHave you read our Constitution? In case you haven’t recently, there’s nothing within it that requires American citizens to open their door when somebody knocks. Opening your door to a stranger is optional. Why people feel compelled to answer the door is beyond me. And to add insult to injury, I’m not sure why folks running illegal grow house operations would be so eager to answer their door either. And since we’re discussing grow houses, a little explanation could be helpful here.

Grow Housesare simply residential homes in which every room is converted for marijuana cultivation. The operation lasts 4 months, and vacant home owners are offered $10-20,000+ dollars for the temporary use of their residence. The residence is left in shambles following the harvest–holes are cut in many walls for irrigation pipes, dirt everywhere. The operation requires extra air conditioners to cool down all the hot grow lights. The energy usage can throw up red flags to the electric company, as energy usage far exceeds normal usage–thus many operators ‘steal’ power by altering power feeds to the home so as to mask their high power consumption, etc.

Our discussion of grow houses centers on the case of State of Florida v. Roman, 103 So.3d 922 (Fla. 2nd DCA 2012). Roman is accused of running a grow house. She was charged with trafficking in cannabis, possession of a prescription drug (alprazolam), possession of drug paraphernalia, and larceny with relation to a utility–just to name a few. You might wonder to yourself, how did the police find all these drugs? A good old fashioned illegal search, and a supposedly legal search warrant. It all started as many grow house cases start, with a tip to law enforcement. Based on this tip, the police began running surveillance on the property. Once the police notice a person showing up to the home, they will (eventually) knock on the front door. No exception here. The police eventually notice Ms. Roman pull up to the home and enter it, so they approach the front door.

Before we get into answering the front door, let’s review what the police must tell a judge to get him/her to sign off on a search warrant permitting entry into a home. Here’s a breakdown of the four things you’ll find in every search warrant application for a grow house: In Roman’s case, the police claimed to have heard a (1) “humming” noise coming from the garage. The police always claim to hear a humming noise, as this will help convince a judge that there might be “grow lamps” inside the home from which their ballasts tend to hum a bit. The officers also saw (2) PVC pipes coming out of the garage which probably “carry the runoff water from the plants.” Id. at 923.

Another typical allegation involves the smell of marijuana as the cops approach the garage. And thus the cut and paste search warrant application continued in Roman’s case, as it was claimed that they (3) smelled weed as they approached the garage.
And, don’t forget about (4) the video cameras. Apparently, video cameras are somehow a bad thing for private citizens to have, and the officers told the search warrant judge that “there was a video camera above the front door pointing toward the street and that such surveillance equipment is common in marijuana grow houses”. Id. Really? I fail to see the causal connection here. I suppose the officers could just argue that the homeowner had a tattoo, and most people in prison have tattoos, therefore, we should just skip the legal formalities and send the person to prison. Nonetheless, this logic was enough to get a judge to sign a search warrant to permit entry into Roman’s home.

Now back to the story about answering the door. The police knock on Roman’s door, and Ms. Roman answers the door. Upon opening the door, the odor of cannabis smacks the officer right in the face (this much, I believe). The officer immediately detains Roman outside the home, in order to gain time to apply for a search warrant. The officer then does something illegal. He conducts what is a called a “protective sweep” of the home. Supposedly, this is done “to make sure no one else [is] in the house for their safety”, and also, the common claim is that “someone in the house could destroy evidence while he was procuring the search warrant or such person may have access to weapons.” Id. During this so-called protective sweep, the officer observed numerous marijuana plants. As such, he put in his search warrant the fact that he saw these marijuana plants during the protective sweep. Now, what judge is not going to grant the search warrant at this point?

Do you see what happen here? The police have absolutely no right to enter a person’s home without a warrant. That’s just basic constitutional law, and it has very few exceptions. Yet, this officer entered Roman’s home anyway under the guise of a “protective sweep.” Did he get away with it?

Roman’s criminal defense attorney filed a motion to suppress the search warrant issued in this case, and the motion to suppress was granted. This was the right decision, and my compliments to this judge for following the law and upholding the constitution. But as you might expect, the state appealed the court’s suppression order. Here’s what the appeals court had to say.

The appeals court noted that “[w]e agree with the trial court that the sweep of Ms. Roman’s house was improper”, further reasoning that “the trial court correctly found that the sweep of the house was improper based on the concern that evidence may be destroyed because there were no facts supporting an objectively reasonable basis for the belief that someone inside the house could destroy evidence while the warrant was being obtained.” Id. at 924. Unfortunately, the analysis does not end here.

The court overturned the suppression–claiming that the search warrant was legal–because the officers “could smell the odor of marijuana coming from inside the house when Ms. Roman opened the front door”, and that this smell from the open door “established the probable cause necessary to support the issuance of the search warrant.” Id at 926. Do I agree with this decision? No. Where’s the punishment against the government for entering Roman’s home without a warrant? Where’s the exclusionary rule when you need it? The appeals court acknowledges an illegal home entry, yet does nothing about it, they simply bent over backwards to find a way to uphold the search. If our Constitution is to have any meaning, there must be some sort of consequence to an illegal entry by the government into homes. This sends the wrong message to law enforcement–which is why we suppress evidence in this country, so that law enforcement will have some incentive to not repeat their illegal behavior. Still, opening the front door can be a bad thing, especially if you’ve got a grow house inside. I’m just saying.