State v. Kosman

In State v. Kosman, 181 Ariz. 487, 492, 892 P.2d 207, 212 (App. 1995), police officers went to a parking lot outside Kosman's apartment to arrest a man named Colelli, for whom there were outstanding warrants. 181 Ariz. at 489, 892 P.2d at 209. Kosman and Colelli exited the apartment and both were secured by officers in the parking lot, well away from the apartment, and Colelli was arrested on the warrants. Id. While these two men were thus secured, two officers approached the apartment, concerned that there could be other persons inside who might interfere with the arrest. Id. After receiving no answer to their call inside, officers entered the apartment and found illegal drugs. Id. Kosman was arrested and charged with drug offenses, and prior to trial moved to suppress the evidence seized from the apartment. Id. The trial court granted the motion. Id. at 490, 892 P.2d at 210. During the suppression proceedings, one of the officers contended that he smelled burning marijuana when they reached the door of the apartment; Kosman contested this assertion but the trial court did not rule on this disputed fact issue. Id. On appeal, the Court held that, unless the trial court found on remand that the officer had smelled burning marijuana, there were no reasonable grounds to believe another person could be present. The protective sweep could not be sustained unless the officer had smelled burning marijuana, and there was otherwise no separate crime to interdict. Id. at 492, 892 P.2d at 212. Kosman and Colelli were secured well away from the apartment, and until they had increased their exposure to risk by approaching the residence 6officers had no reasonable grounds to justify entry and they sought no item of evidence material to an ongoing investigation of any recently-committed crime. Id. The Court reversed the trial court's order suppressing the evidence against Kosman on the basis that, if the officer's testimony that he had smelled the odor of burning marijuana coming from the apartment was deemed credible, exigencies of halting an ongoing crime and preventing the destruction of evidence allowed the officers' warrantless entry. 181 Ariz. at 491, 892 P.2d at 211. We discussed the contention that the entry was a permissible protective sweep because the state had made such a contention, but the discussion was superfluous to our holding, and formed only a subsidiary aspect of our discussion. Id. at 491-92, 892 P.2d at 211-12.