When is it legal for a police officer to enter my home without my permission?

A police officer came to my apartment on a noise complaint. When I opened the door and tried to step outside and shut the door behind me, he promptly wedged his foot in the door and said “the door stays open so I can make sure nobody has any weapons.” When I asked him politely to step outside, he replied “The door stays open unless you want me to search your apartment, I can smell marijuana and that gives me probable cause.” Was the officer acting within his legal bounds? Or did he break the law by doing this? Also, is the smell of marijuana a legitimate reason to search my apartment?

Asked on July 23, 2010 under Criminal Law, California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

The police need what I am sure you have heard on every TV show that deals with the law: probable cause, in order to act without a warrant or to obtain a warrant for entrance in to your home or other constitutionally protected area.  There is also a doctrine known as "plain view" but that is limited by the probable cause doctrine.  You would have to check with an attorney in your state to be sure but I do not believe that the smell of pot is enough for the police to enter your home with "probable cause."  He was being a bully.  But probably not enough to constitute any illegal action. 


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