UNIVERSITY OF THE DISTRICT OF - UDC Law Review

porch no search, as officer “entitled to walk up onto the porch,” for it “was accessible from a large parking area” nearby and thus
“was impliedly open to the public”); State v. Poling, 207 W.Va. 299, 531 S.E.2d 678 (2000) (no search where officer on front
porch on lawful business saw marijuana plants through uncovered window).
Considering the Lorenzana case in the text following, it may sometimes be argued that the observation was not a search because
the defendant had not made reasonable efforts to maintain privacy. Generally, it would appear that somewhat greater efforts might
be required as to windows at or by an entrance to the premises as compared to the kind of windows involved in Lorenzana. But see
State v. Jordan, 29 Wash.App. 924, 631 P.2d 989 (1981) (where police on porch responding to complaint of noisy party, looking
into 6″ space between drape and window casing a search, as “by drawing the curtains the individuals inside the duplex had clearly
demonstrated a reasonable expectation of privacy”; dissent objects this a valid plain view because it cannot be said “the officers
had to strain and contort so that they might see through a tiny opening”).
Taylor v. Michigan Dept. of Natural Resources, 502 F.3d 452 (6th Cir.2007) (under “conditions consistent with a winter-time
break in of a potentially-seasonal home” that “warranted a brief protective check,” it not objectionable that officer, in “broad
daylight, … spent approximately five minutes looking in open windows”); United States v. Khabeer, 410 F.3d 477 (8th Cir.2005)
(no search for officer to see TV set through front window of home while standing in driveway); Hardister v. State, 849 N.E.2d 563
(Ind.2006) (where officers lawfully went to back yard in reasonable anticipation that suspects within would flee out back door, but
they did not, once officers “lawfully present in the backyard, their looking into the kitchen through the side and rear windows, was
also reasonable as an effort to locate the fleeing suspects”); Commonwealth v. Hatcher, 199 S.W.3d 124 (Ky.2006) (since officer
“authorized to knock on Hatcher’s door to respond to the report of an allegedly abandoned minor,” no Fourth Amendment
violation when he “looked into her house through the open door”).
96 People v. Smith, 152 Ill.2d 229, 178 Ill.Dec. 335, 604 N.E.2d 858 (1992) (defendant’s confession to murder overheard by officers
in unlocked apartment building common-area hallway); Hall v. State, 15 Md.App. 363, 290 A.2d 803 (1972) (officer overheard
words while on front porch).
97 Miller v. State, 342 Ark. 213, 27 S.W.3d 427 (2000) (smelling marijuana within while lawfully at back door no search); People v.
Baker, 813 P.2d 331 (Colo.1991) (officer smelled odor of marijuana from outside open front door); State v. Garcia, 374 So.2d 601
(Fla.App.1979) (officer smelled odor of marijuana from front porch); State v. Prevette, 43 N.C.App. 450, 259 S.E.2d 595 (1979)
(same); State v. Glines, 134 Or.App. 21, 894 P.2d 516 (1995) (while at side door, officer smelled odor of marijuana coming from
basement, interior access to which was located by that door); State v. Perez, 85 S.W.3d 817 (Tex.Crim.App.2002) (smelling of
marijuana inside apartment after defendant answered lawful knock on door).
Sometimes a court will, in the alternative, deem the approach and smelling a search, albeit one justified by exigent circumstances.
See, e.g., Holder v. State, 847 N.E.2d 930 (Ind.2006) (where officers detected odor of ether from as far away as 100 yards from
defendant’s home, which “led them to walk across the private property of several residents in the neighborhood and ultimately to
crouch near the defendant’s basement window to take a sniff,” the “significant degree of the fumes from a known explosive and
flammable chemical in a residential area compelled the officers to find its source for the sake of the safety and health of the nearby
residents”).
98 United States v. Cephas, 254 F.3d 488 (4th Cir.2001) (“A voluntary response to an officer’s knock at the front door of a dwelling
does not generally implicate the Fourth Amendment, and thus an officer generally does not need probable cause or reasonable
suspicion to justify knocking on the door and then making verbal inquiry”); United States v. Tobin, 923 F.2d 1506 (11th Cir.1991);
United States v. Peters, 912 F.2d 208 (8th Cir.1990) (“After Peters opened the door to the hotel room in which he was staying, in
response to the simple knock on the door by the police officers, a search did not occur when the detectives looked into Peters’
room through the open doorway”); People v. Baker, 813 P.2d 331 (Colo.1991); State v. Sanders, 374 So.2d 1186 (La.1979) (“It is
an almost implicit understanding and custom in this country that, in the absence of signs or warning, a residence may be
approached and the occupants summoned to the door by knocking”); Commonwealth v. Acosta, 416 Mass. 279, 627 N.E.2d 466
(1993) (no search where officer viewed defendant when he opened door in response to a knock; officer “did not announce himself
as a police officer” and “did no more than any citizen could do by entering a common area and knocking on the door”).
In trying to summon the occupant to the door, it is not objectionable that the police resorted to a ruse. United States v. Leung, 929
F.2d 1204 (7th Cir.1991). But the result is otherwise if the door is opened in response to a police command. United States v.
Conner, 127 F.3d 663 (8th Cir.1997) (“an unconstitutional search occurs when officers gain visual … access to a motel room after
an occupant opens the door not voluntarily, but in response to a demand under color of authority”). As for the distinction between
an order and a request, see Bailey v. Newland, 263 F.3d 1022 (9th Cir.2001) (when officers approached motel room, Cowans
stepped outside, after which Bailey slammed the door; police put Cowans in police car and then one officer “began knocking on
the door and … identified himself as a police officer”; “he knocked for about one-minute-and-a-half to two minutes while
continuing to identify himself as a police officer but issued no commands or orders”; Bailey then opened the door and stepped out,
permitting police to see gun and drug paraphernalia within; court concludes it has “no basis to conclude that Bailey voluntarily
answered the door”); United States v. Tobin, 923 F.2d 1506 (11th Cir.1991) (where officer knocked 3–4 minutes and called out,
“I’m a police officer, I would like to talk to you, I need for you to come here,” this not an order, as the officer “did not use the
imperative” and “he phrased his words in the form of a request”); Commonwealth v. Hamilton, 24 Mass.App.Ct. 290, 508 N.E.2d
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