James White v. TAMMIE STANLEY and THOMAS MORRISON

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2131
J AMES WHITE ,
Plaintiff‐Appellee,
v.
T AMMIE STANLEY and T HOMAS MORRISON,
Defendants‐Appellants.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Western Division.
No. 3:11‐cv‐50057 — Frederick J. Kapala, Judge.
____________________
A RGUED FEBRUARY 12, 2014 — D ECIDED MARCH 11, 2014
____________________
Before P OSNER , FLAUM, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. James White was arrested in his
home in March of 2010 for obstructing a peace officer. Two
deputy sheriffs came to White’s house without a warrant
looking for his live‐in girlfriend, Nancy Hille, on suspicion
that she had stolen a license‐plate registration sticker. White
refused to let them in and tried to slam the door, at which
point one of the deputies jammed her foot in the door and
the deputies entered the house. The deputies took White to

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2 No. 13‐2131
the ground. The deputies claim that this entry was justified
because they smelled burning marijuana when they were
outside the door. White sued for false arrest, and the district
court found that no exigency existed. It also denied the dep‐
uties’ qualified immunity defense, finding it waived. The
deputies took an interlocutory appeal, and we reverse.
I. Background
Winnebago County Sheriff’s Deputy Tammie Stanley
was on patrol during the early morning hours of March 9,
2010, when she pulled over Nancy Hille for an expired vehi‐
cle registration sticker. She ran Hille’s license plates, and
discovered that the Secretary of State’s record of the plate’s
expiration date was different than the date on the expired
sticker. Stanley asked dispatch to contact the Secretary of
State’s office. But because of the lateness of the hour, Stanley
was unable to resolve the date discrepancy at the time of the
stop and let Hille go.
Stanley returned to duty that afternoon. The Secretary of
State’s office had gotten back to her, and she learned that the
sticker on Hille’s car was stolen. Possession of a stolen stick‐
er is a class 4 felony in Illinois. Stanley proceeded immedi‐
ately to Hille’s registered address in Machesney Park to ar‐
rest her for the offense, arranging for fellow Sheriff’s Deputy
Thomas Morrison to meet her at the house to assist.
When the deputies arrived at the house and knocked on
the door, it was answered not by Hille but by the plaintiff,
James White. White was Hille’s boyfriend at the time, and he
owned and lived in the house. The deputies told White that
they wanted to come inside to speak with Hille, but White
refused to allow them entry without a warrant.

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No. 13‐2131 3
Deputies Stanley and Morrison claim to have smelled
burning marijuana coming from inside the house while they
spoke with White at the front door. Indeed, Hille had been
smoking marijuana just before the officers arrived. She was
eventually found in the house with a half‐burned joint. At
some point during their discussion, White attempted to close
the door on the deputies and then retreated into the split‐
level house and up the stairs. But Stanley blocked the door
from closing, and the deputies came into the house just be‐
hind White and tackled him on the stairs. Morrison forced
White’s arm behind his back and told White to stop resist‐
ing. White denies resisting and says that he told Morrison
that Morrison was hurting his arm. White claims to have suf‐
fered a shoulder injury during the incident.
The deputies arrested White for resisting or obstructing a
peace officer.1 The charge was later dismissed. White then
brought this § 1983 suit against Stanley and Morrison for
false arrest and excessive force.2
After discovery, the deputies moved for summary judg‐
ment on the false arrest claim. They claimed that the smell of
burning marijuana provided an exigency justifying entry in‐
to the house in order to prevent the destruction of evidence.
Barring that, the deputies argued that it was not clearly es‐
tablished that the smell of marijuana alone could not give
1 The deputies also arrested Hille, both for possession of marijuana and
for improper display of a registration sticker.
2 The excessive force claim remains pending in the district court and is
not part of this appeal. White also brought a claim pursuant to Article I,
§ 6 of the Illinois Constitution. The district court granted summary
judgment against White on this claim and he does not appeal.

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4 No. 13‐2131
rise to an exigency, which would entitle them to qualified
immunity. See Pearson v. Callahan, 555 U.S. 223, 232 (2009).
The district court denied the motion. The court found
that there was no exigency, and that the deputies had
waived the defense of qualified immunity. The deputies had
included the defense in both their answer and their memo‐
randum in support of summary judgment, and White had
argued against it in his response memo. Yet the district court
found the qualified immunity argument undeveloped and
therefore waived because, in the court’s view, the deputies
did nothing more than recite the boilerplate requirements for
the defense. The court added that even if the argument had
not been waived, the deputies would not have been entitled
to qualified immunity because they violated a clearly estab‐
lished right. The deputies took an interlocutory appeal.
II. Discussion
Our review of the district court’s finding of waiver and
its denial of qualified immunity is de novo. See, e.g., e360 In‐
sight v. Spamhaus Project, 500 F.3d 594, 599 (7th Cir. 2010);
Levan v. George, 604 F.3d 366, 369 (7th Cir. 2010).
The district court was incorrect to conclude that the dep‐
uties had waived their qualified immunity defense. Indeed,
White concedes this in his brief on appeal, agreeing that the
deputies raised the issue, and noting that their arguments
were sufficient to induce a response from White in the dis‐
trict court. We enforce waiver in part to prevent prejudice to
the opposing party, and it is obvious that White would suf‐
fer no prejudice by allowing the defense here. See Hernandez
v. Cook Cnty. Sheriff’s Office, 634 F.3d 906, 913–14 (7th Cir.
2011). He was on notice from the time of the deputies’ an‐

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No. 13‐2131 5
swer that they planned to assert qualified immunity. And
when it was raised in the deputies’ summary judgment
memorandum, White responded in his brief. Waiver was
therefore inappropriate.
On the merits of the deputies’ claims of qualified immun‐
ity, their susceptibility to suit hinges on the propriety of their
home entry. If the deputies had no right to enter the house,
then White’s slamming the door on them would obviously
not support an arrest for obstruction of a peace officer. If,
however, the deputies did have a right to enter the home,
then White’s door slamming at least arguably supplied them
with probable cause to arrest.
Typically, the Fourth Amendment requires police to have
probable cause and a warrant to enter a home. Payton v. New
York, 445 U.S. 573, 586 (1980). The deputies had no warrant,
but they argue that the smell of burning marijuana outside
the house presented an exigency—an exception to the war‐
rant requirement. Police have authority to enter a home
without a warrant to render emergency assistance, pursue a
fleeing felon, or prevent the destruction of evidence. Ken‐
tucky v. King, 131 S. Ct. 1849, 1856 (2011).
As in all cases concerning qualified immunity, we must
determine whether there was (1) a violation of (2) a clearly
established constitutional right. Pearson, 555 U.S. at 232. The
district court initially asked the right question—whether the
smell of burning marijuana outside a home provided an exi‐
gency—and answered it in the negative. We agree with the
district court’s conclusion that the smell of burning marijua‐
na, without more, did not provide an exigency permitting
these officers to make a warrantless entry. But we disagree
with the court’s answer to second question: contrary to what

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6 No. 13‐2131
it found, it was not clearly established at the time of the inci‐
dent that burning marijuana did not justify warrantless en‐
try.
We are guided to our conclusion on the first prong by the
Supreme Court’s decisions in Johnson v. United States, 333
U.S. 10 (1948), and Welsh v. Wisconsin, 466 U.S. 740 (1984). In
Johnson, federal narcotics officers approached a hotel room
on a tip and smelled odors of burning opium outside. 333
U.S. at 12. Though the officers had no warrant, one of the of‐
ficers demanded that the suspect open her door so that they
could search her room, which she did. The Supreme Court
concluded that the officers should have obtained a warrant,
because the mere smell of burning opium outside a hotel
room was insufficient to excuse the requirement, despite the
fact that the opium odors would dissipate. Id. at 15. The
Court’s holding the police to the warrant requirement in
Johnson suggests that the smell of burning marijuana is no
exigency here, either.
Welsh is instructive for different reasons. A suspect was
arrested for drunk driving after the police found his aban‐
doned car near his home and entered his home without a
warrant to administer a test for blood alcohol level. 466 U.S.
at 742–43. At the time, Wisconsin deemed it a minor offense
to drive under the influence. The state claimed it had a right
to enter the home without a warrant to prevent the destruc‐
tion of evidence—i.e., the dissipation of the suspect’s blood
alcohol level. But the Supreme Court rebuffed this argument
and counseled that suspicion of minor offenses should give
rise to exigencies only in the rarest of circumstances, because
the state’s interest in gathering evidence of a minor offense is

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No. 13‐2131 7
generally not strong enough to overcome the weighty inter‐
est in home sanctity. Id. at 753.
The possession of a small amount of marijuana is far
from that rare case. In all of the states in this circuit, mere
possession is only a misdemeanor. See 720 ILCS 550/4; Wis.
Stat. § 961.41(3g)(b); Ind. Code § 35‐48‐4‐11. In fact, in Illi‐
nois, possession will soon no longer be per se illegal under
state law, as Illinois has begun implementing regulations to
permit the use of medical marijuana for qualifying individu‐
als. See Medical Cannabis Pilot Program, ILLINOIS.GOV ,
http://www2.illinois.gov/gov/mcpp/Pages/default.aspx (vis‐
ited March 5, 2014). Thus, once this regulatory scheme is in
place, the smell of burning marijuana will not necessarily be
indicative of any wrongdoing under Illinois law.
The upshot of all this is that police who simply smell
burning marijuana generally face no exigency and must get
a warrant to enter the home. But the lack of an exigency does
not end the inquiry in this case, for the deputies still prevail
if the right they violated was not clearly established at the
time of the violation.
On this second prong the district court stated: “it is estab‐
lished beyond need for citation that a private citizen may re‐
fuse police entrance into his home without a warrant or oth‐
er justifying circumstances and arresting an individual for
whom the officers lacked probable cause is unconstitution‐
al.” True. However, that is not the critical inquiry. The dis‐
trict court’s approach would undermine the effectiveness of
the qualified immunity defense for officers anytime they en‐
ter a home on a questionable exigency. If the court found
that in fact no exigency existed, liability for an illegal search,
illegal entry, or illegal arrest would always follow.

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8 No. 13‐2131
In Anderson v. Creighton, 483 U.S. 635 (1987), the Supreme
Court cautioned against defining the relevant constitutional
right in the qualified immunity analysis too generally, be‐
cause doing so would “convert the rule of qualified immuni‐
ty … into a rule of virtually unqualified liability simply by
alleging a violation of extremely abstract rights.” Id. at 639.
After all, it is obvious—as the district court said—that
searching or arresting anybody after an unjustified home en‐
try violates clearly established constitutional rights. But this
glosses over the tough question facing the officer: “Do I have
justification to enter in the first place?” Qualified immunity
is supposed to protect officers in the close case, and it there‐
fore must apply to the officer’s snap judgment in a legally
hazy area. Cf. Stanton v. Sims, 134 S. Ct. 3, 7 (2013) (per curi‐
am) (finding an officer entitled to qualified immunity for
chasing fleeing misdemeanant onto the curtilage of a home
because of a split in case law on the propriety of doing so).
The necessary inquiry in this case is whether it was clear‐
ly established on March 9, 2010 that the smell of burning
marijuana, standing alone, was no exigency. During the
court’s discussion of whether or not the smell of burning
marijuana established an exigency, it noted that “courts who
have addressed [the issue] have answered that question in
varied and conflicting ways, and there does not appear to be
a universal, or even majority, approach to this question.”
The district court was right—federal and state courts have
been all over the map on this issue. Compare United States v.
McMillion, 472 F. App’x 138, 141 (3d Cir. 2012) (smell of
burning marijuana provided an exigency); United States v.
Grissett, 925 F.2d 776, 778 (4th Cir. 1991) (same); State v. Ro‐
driguez, 945 A.2d 676, 678–79 (N.H. 2008) (same); Rideout v.
State, 122 P.3d 201, 208 (Wy. 2005) (same); Mendez v. People,

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No. 13‐2131 9
986 P.2d 275, 282 (Colo. 1999) (same); State v. Hughes, 607
N.W.2d 621, 628 (Wis. 2000) (same); State v. Decker, 580 P.2d
333, 336 (Ariz. 1978) (same), with Howe v. State, 916 P.2d 153,
160 (Nev. 1996) (smell of burning marijuana did not give rise
to an exigency); State v. Ackerman, 499 N.W.2d 882, 886–87
(N.D. 1993) (same); State v. Dorson, 615 P.2d 740, 746 (Haw.
1980) (same); State v. Schur, 538 P.2d 689, 694 (Kan. 1975)
(same). Adding to the confusion, many of the courts that
have dealt with this issue have been willing to consider the
smell of burning marijuana only as part of a totality of the
circumstances inquiry in deciding whether an exigency ex‐
ists. See, e.g., State v. Walker, 62 A.3d 897, 906 (N.J. 2013).
In light of this fractured case law, we cannot say that “at
the time of the challenged conduct, the contours of [White’s]
right [were] sufficiently clear” such that “every reasonable
official would have understood” that entering the home after
smelling the burning marijuana violated the right. Ashcroft v.
Al‐Kidd, 131 S. Ct. 2074, 2083 (2011) (internal alterations and
quotation marks omitted). It follows that the deputies are
entitled to qualified immunity.
Future police officers faced with a situation like the one
confronting Stanley and Morrison should not feel embold‐
ened to act as the deputies did here. Henceforth, officers
who make a warrantless entry under the circumstances
found in this case should expect no shelter from liability.
R EVERSED.

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