State v. Scott Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997)
For Kiekhefer: Linda Hornik
Issue/Holding: The odor of burning marijuana from within a closed bedroom did not create exigent circumstances for the police, who did have permission to be in the house, to enter the bedroom:
According to Londre, they believed Kiekhefer was in possession of a large amount of marijuana. However, the presence of contraband without more does not give rise to exigent circumstances. See United States v. Rodgers, 924 F.2d 219, 222 (11th Cir. 1991). In addition, a large quantity of marijuana, unlike other contraband, could not be easily or quickly destroyed in Kiekhefer’s bedroom. When police know that the drugs being searched for are of a type or in a location that makes them impossible to destroy quickly, “the asserted governmental interests in preserving evidence and maintaining safety may not outweigh the individual privacy interests intruded upon a no-knock entry.”Richards v. Wisconsin, ___ U.S. ___, 117 S. Ct. 1416, 1421 (1997). The scales tip even less in favor of the governmental interests in an unannounced warrantless entry.Moreover, the agents were not confronted with the sounds of destruction emanating from within Kiekhefer’s room so as to excuse the warrantless entry. See, e.g., United States v. Frierson, 299 F.2d 763, 766 (7th Cir. 1962) (exigency exists where officers heard “get rid of the stuff”). In fact, the agents took the time to discuss obtaining a search warrant, but decided to simply enter the room.
Although the agents smelled an odor of burning marijuana, this does not justify the warrantless entry either. Rather, the agents had probable cause to secure a search warrant, but they had no right to make a warrantless entry into Kiekhefer’s room. See Johnson v. United States, 333 U.S. 10, 13 (1948); see also State v. Brockman, 231 Wis. 634, 641, 283 N.W. 338, 342 (1939). In this case, the agents’ warrantless entry into Kiekhefer’s room was not justified by exigent circumstances founded on fear of destruction of evidence.