The gas line, the marijuana, and the Fourth Amendment

Back in November 2012, there was a gas leak in the line going into an industrial building in Brooklyn Park. CenterPoint Energy turned off the gas in order to repair the leak, and then needed to relight pilot lights in each unit of the building. One of those units belonged to Free Vend Technical Services, owned by Stephen Iepson. CenterPoint had difficulty reaching Iepson so they decided to make entry without him, but asked for a "standby police presence." About two hours later, a Brooklyn Park officer arrived.

The building owner unlocked the front door for CenterPoint and the officer, but a locksmith had to pick a second door. Upon opening the second door, the officer reported an "extremely strong smell of unburnt marijuana," and saw marijuana plants. The officer soon left the building, and later obtained a search warrant. Officers would find "16-20 harvested marijuana plants" and "multiple marijuana plants encased in foil with hydroponic lights over them." On March 26, 2013, the Hennepin County Attorney's Officer charged Iepson with felony possession of a controlled substance in the fifth degree.

The Court of Appeals reversed the conviction on April 6, 2015.

Why? Let's start with a little legal primer.

A (Very) Brief Lesson on the Fourth Amendment

Normally, officers need a search warrant to search a place where you have a "reasonable expectation of privacy." For example, you have a reasonable expectation of privacy in your house or business, but not outside on the street. However, there are many exceptions to the warrant requirement. One exception is when there is an emergency. The warrant requirement also does not apply when it is a private person making the search -- rather than a police officer.

If police violate the warrant requirement (and the Fourth Amendment), then everything found as a result of that violation is not admissible in court; lawyers call this "fruit of the poisonous tree." So let's see how the Court of Appeals analyzed this case.

Warrant Exception #1: Was there an emergency?

Police do not need a warrant to search when there is an emergency. In this case, the prosecution argued that the risk of an explosion clearly created an emergency, but the defense argued that there was little risk: no one called 911, no one called the fire department, and CenterPoint waited two hours for police to arrive. The Court of Appeals agreed with the defense, and decided there was no emergency.

Warrant Exception #2: Was it a non-police officer making the search?

The Fourth Amendment protects you against privacy intrusions by the government, not from private actors -- like your family, friends, or boss. In this case, the prosecution (in the appeal only) argued that the search was done for the benefit of CenterPoint, not for the police. However, the defense argued that the police officer took control of the situation upon arrival, and was the first person through the second door. The Court of Appeals did not directly answer the "private-action" argument because the prosecution never raised it in trial court, so the Court of Appeals thought it was unfair to allow the argument without a full opportunity for the defense to gather facts. And since the prosecution could not make the argument, the exception did not apply.

Court of Appeals Reverses Conviction

Without those exceptions to the warrant requirement, the Court of Appeals reversed the trial court, and Iespson's conviction was thrown out.

"The Constitution isn't a technicality. The Constitution guarantees to all of us the right to privacy, the right against unreasonable searched and seizures. And the Court of Appeals did the right thing with this case," Joe Tamburino, the attorney for Iepson, told FOX 9.

So how could the Prosecution have made the Conviction Stick?

Since the Court of Appeals did not directly address the question of whether the officer was conducting the search for the benefit of CenterPoint -- and not the police -- it is impossible to provide a definite answer to that question. However, the chances of the conviction sticking would likely have been greatly improved if the officer took a more passive role at the business -- perhaps if the officer stayed outside the door and never made entry. In that scenario, the building owner or CenterPoint energy worker would have seen the marijuana and told the officer. Then, without going to check the plants himself, the officer would have asked for a warrant from a judge. A warrant would have allowed the police to then lawfully search the property. Remember, in this case, the police did eventually get a warrant – but it was only after the officer went inside and saw the marijuana.


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