Nothing Better To Do

My biggest takeaway from State v. Foncette is that there must be no crime in Tempe. Officers stopped Foncette, apparently smelled marijuana, and brought a drug dog to the scene. The dog alerted, but they found nothing. They proceeded to follow him to a hotel and walked with the dog down the hallway outside of the room where he was staying. The dog alerted outside of his room, and officers knocked. When he opened the door, officers apparently smelled marijuana again. Foncette left the room when officers asked, but his companion did not. Police then detained both of them, and they subsequently got a warrant for a nighttime search of the hotel room. They found a lot of marijuana.

Obviously, there were no burglaries in Tempe that night. I am sure there were no domestic violence incidents or assaults to solve either. The streets of Tempe were no doubt over-saturated with officers taking each and every dangerous drunk driver off of the road. At least a few officers seemed to waste the whole evening chasing Foncette around on a marijuana fishing expedition, after all, and it would be irresponsible, to say the least, for the city to devote precious law enforcement resources better used elsewhere to follow one guy around waiting to strike gold.

Although that is the real message in Foncette as far as I am concerned, the legal impact of the case has to do with the searches and seizures. The first legal question was whether Foncette had a reasonable expectation of privacy in the hallway outside of his hotel room. The court did not struggle with that issue, however. Because the hallway outside Foncette’s hotel room was not a private area, but rather a public area open to guests and staff and management, the police had a right to be there too, according to the court. Authorization from hotel management was adequate license for officers to enter the hallway.

As evidenced by the opinion, the judges on the Court of Appeals are no doubt fine with police officers combing the halls of the hotels where they stay, perhaps even standing outside their doors with drug-sniffing dogs trying to detect what they are doing inside. After all, the court explained that a well-trained drug-detection dog “discloses only the presence or absence of narcotics, a contraband item.” The court said the search is not improper because state actions that reveal only contraband do not compromise any privacy interest that society accepts as reasonable. If you have nothing to hide, who cares about drug dogs and police officers outside of your room, right?

The court also explained that officers lawfully in the hallway can “reasonably seek a consent-based encounter by knocking on the hotel room door.” Again, I am sure the judges at the Court of Appeals would be grateful having officers with dogs knocking on their hotel room doors and initiating contact as they try to sleep. Furthermore, they saw no problem with officers asking Foncette and his companion to leave the room, nor did they take issue with a nighttime search warrant being executed under the circumstances. In essence, the court was fine with pretty much everything, and pretty much everything happened because officers noted the odor of marijuana.

The month before the Court of Appeals decided Foncette, other judges from the same court in State v. Sisco reversed a trial court’s denial of a motion to suppress where police officers smelled fresh marijuana and obtained a warrant based only on information about the scent. The court explained, “now that marijuana may be possessed legally under Arizona law, facts demonstrating nothing more than such possession cannot, standing alone, be probable cause to believe a crime has been committed.” Sadly, Foncette made no mention of Arizona’s medical marijuana laws, the basis for the ruling in Sisco. Furthermore, in State v. Cheatham, yet another group of judges from the same court decided that the odor of marijuana provided sufficient probable cause for the purposes of a warrantless search of a vehicle. The judges there did consider the medical marijuana laws, but they distinguished the case from Sisco in large part simply because a car was involved.

With major changes in Arizona’s laws with regard to marijuana, it would make sense for the courts to alter their Fourth Amendment analyses. Looking at Cheatham and Foncette, it would seem that things are exactly the same as they were before. Only Sisco seems to recognize the changes, but the main message from Foncette puts it all in perspective. Like I said before, police in cities like Tempe obviously do not have anything else to do. Following people like Foncette fills that gap, and plenty of judges are clearly loathe to deprive police officers of the fruits of their tireless efforts to remove the last remnants of what may or may not be illegal from their community.