The court of appeals rejects the state’s attempt to parlay a single fact–a strong smell of unburned marijuana emanating from a house–into exigent circumstances justifying a warrantless search.
The search happened mid-afternoon. The first officer on the scene was responding to a call about a dog left outside the house without food or water. (¶2). He knocked on the door; Phillips opened it and “almost … slid out and immediately closed the door behind her.” (¶3). While it was open, the officer smelled a “pungent, strong odor of non-burnt marijuana coming from the residence”; he also smelled it coming from Phillips’s clothing. (¶3).
The officer called for backup and asked for Phillips’s consent to search the house; she refused. (¶4). The officer informed Phillips that in his view, the odor he smelled constituted exigent circumstances to enter the home. (¶5). After allowing Phillips’s young daughter, who was afraid of the police, to come out of the house and go to a neighbor’s, the two officers entered Phillips’s home without her consent, and found drugs. (¶6).
Phillips concedes that the smell coming from her house supplied probable cause; the dispute here is whether the facts also constituted exigent circumstances such that a warrant was not required. See State v. Hughes, 2000 WI 24, ¶17, 233 Wis. 2d 280, 607 N.W.2d 621. The trial court concluded that the strong smell of marijuana itself showed exigency on the the theory that “a delay in procuring a warrant would gravely endanger life or risk the destruction of evidence.” (¶11).
Here’s the problem with the trial court’s position: binding case law that the odor of marijuana does not, by itself, show exigent circumstances. (¶17 (citing Hughes, ¶¶27-28, Johnson v. United States, 333 U.S. 10 (1948), and State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997))). The state tries to get around this obstacle by positing that “other factors” support exigency here.
The problem with that argument is that these “other factors” either lack any basis in the officer’s observations or consist of speculation based solely on the presence of the marijuana odor. All the state’s claims, whether directed at danger to life or the destruction of evidence, depend on the notion that the house likely harbored some other person to do the endangering and/or destroying (since Phillips was outside with the officers). But the officers made no observations suggesting the presence of such a person. Of course, someone could have been inside, but the court of appeals cites foreign case, State v. Watts, 801 N.W.2d 845 (Iowa 2011), to explain why this mere possibility is not enough:
In short, the State’s exigent circumstances claim boils down to an argument that “we didn’t know if there were any other individuals inside the residence,” …. But of course, when a suspect is detained outside his or her residence, it is normally possible there could be other individuals inside. If this mere possibility, without more, constituted exigent circumstances, it would be tantamount to holding that a warrantless “sweep” of a person’s residence could regularly be conducted whenever that person was apprehended at his or her residence. The Fourth Amendment, we believe, requires more.
(¶24). The state also argues that the mere smell of raw marijuana–which per the officer was so strong that it suggested more than a personal use amount–meant that other people would likely have been in the house. The court rejects this argument as unsupported by any testimony. (¶25).