Exigent circumstancs and the smell of burning marijuana
Having reviewed the pertinent authorities, the court agrees with those courts that have found that the smell of burned marijuana, by itself with no other factors, is insufficient to provide exigent circumstances justifying a warrantless entrance into a home. Exigent circumstances only arise in a true emergency where there is a “compelling need for official action and no time to secure a warrant.” Michigan v. Tyler, 436 U.S. 499, 509 (1978). The smell of burned marijuana provides probable cause that a crime—possession of marijuana—may have been committed, but is insufficient to rise to the true emergency level by itself justifying a breach of an individual’s home. The smell of any kind of smoke dissipates over a large area, may linger a substantial time, and can be transported on fabric or other materials quite some distance from the site of the original crime. This is not to say that the smell of burned marijuana cannot constitute exigent circumstances when combined with other facts—see, e.g., United States v. McMillion, 472 F. App’x 138, 141 (3d Cir. 2012) (individual admitted to smoking marijuana when he answered the door and officers smelled burning marijuana); United States v. Reed, 318 F. App’x 774, 776 (11th Cir. 2009) (officers found a nearby field of marijuana plants and smelled marijuana coming from home)—but rather acknowledges the reality that, without more, the smell of burned marijuana in the air simply does not create any kind of emergency sufficient to breach the threshold of an individual’s home. See Payton v. New York, 445 U.S. 573, 585 (1980) (“[T]he physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” (quotation marks omitted)). Furthermore, the smell of burned marijuana in this case only provided probable cause to suspect that someone had possessed a user-amount of marijuana. Possession of a small amount of marijuana is a misdemeanor in Illinois and the Supreme Court has warned that the exigent circumstances doctrine should typically be restricted to cases involving serious crimes. See Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (“[A]pplication of the exigent-circumstances exception . . . should rarely be sanctioned when there is probable cause to believe that only a minor offense . . . has been committed.”). Accordingly, the court rejects defendants’ argument that they had exigent circumstances to enter plaintiff’s home. Without the exigent circumstances, plaintiff’s act of closing the door did not provide the officers with probable cause to believe that he was obstructing the officers’ lawful actions for the purposes of 720 ILCS 5/31-1. Therefore, defendants’ motion for summary judgment, based solely on this argument, fails.