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Smell of burnt marijuana + silence after police knock on door = exigent circumstances

State v. Jennifer M. Parisi, 2014 WI App 129; case activity

The warrantless entry into Parisi’s apartment was lawful because police had probable cause to believe the apartment contained evidence of a crime and there were exigent circumstances justifying entry without a warrant.

Police went to Parisi’s apartment building in response to a drug activity complaint. The complainant said she’d smelled burnt marijuana about an hour before the police arrived and several times per week over the last several months. One of the officers also smelled burning marijuana, and a drug dog “alerted” to the apartment door. One officer heard voices in the apartment, but after he knocked on the door and announced he was a police officer the voices stopped and no one inside responded to the knocking. Believing the lack of response meant the people inside were destroying evidence, the police entered the apartment without a warrant and found marijuana. (¶¶3-7).

Applying State v. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, the court of appeals holds there were exigent circumstances justifying the warrantless entry:

¶10   Here, as the officers stood outside the apartment door, they were aware marijuana was being burned inside Apartment 108. Our supreme court has held that the smell of burning marijuana gives “rise to a reasonable belief that the drug—the evidence—was likely being consumed by the occupants and consequently destroyed.” Hughes, 233 Wis. 2d 280, ¶26. As the Hughes court also observed based on the facts before it, an even greater exigency is

the possibility of the intentional and organized destruction of the drug by apartment occupants once they were aware of the police presence outside the door. Marijuana and other drugs are highly destructible…. It is not unreasonable to assume that a drug possessor who knows the police are outside waiting for a warrant would use the delay to get rid of the evidence.

Id., ¶26; see also [State v.] Robinson, [2010 WI 80,] 327 Wis. 2d 302, ¶31[, 786 N.W.2d 463] (“Drugs like marijuana are easily and quickly destroyed.”). In this case, with the occupants of Apartment 108 quieting or ceasing their conversation and not answering the door after Sell knocked and announced the police presence, “the possibility of the intentional and organized destruction of the drug” existed.

It doesn’t matter that the police heard no sounds suggesting evidence was being destroyed (e.g., the flush of a toilet): “The exigent circumstance exception … does not require that officers observe actual destruction of evidence taking place before making entry.” (¶12). Here, the silence ensuing after the police knocked on the door created the reasonable inference the occupants of the apartment were trying to avoid detection, and persons avoiding detection are more likely also to attempt to destroy evidence. (¶13).

Nor did the police knocking on the door create the exigency:

¶14  …. This position has been soundly rejected by both our supreme court and the United States Supreme Court. In Robinson, which involved suspected drug activity in Robinson’s apartment, our supreme court addressed a nearly identical argument and held that the officers did not “impermissibly create[] the exigent circumstances merely by knocking on [Robinson’s] door and announcing” themselves as police. Robinson, 327 Wis. 2d 302, ¶¶4, 32. In so acting, the court concluded, the officers “were conducting themselves in an utterly appropriate and lawful manner,” and added that “[w]hen law enforcement agents act in an entirely lawful manner, they do not impermissibly create exigent circumstances.” Id., ¶32 ….

¶15   Similarly, in Kentucky v. King, 131 S. Ct. 1849 (2011), another police knock-and-announce case involving the smell of burning marijuana coming from behind an apartment door, the United States Supreme Court held that where police do not create the exigency “by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.” Id. at 1854, 1858. The Court added, “the Fourth Amendment requires only that the steps preceding the seizure be lawful,” and specifically held that the officers’ “bang[ing]” on the door and merely announcing their police presence was conduct which “was entirely consistent with the Fourth Amendment.” Id. at 1858, 1863. Here, [Officer] Sell merely knocked on the door to Apartment 108 and announced his police presence in an obvious attempt to make contact with the occupants. This action was appropriate, lawful and reasonable; thus, the exigency exception to the warrant requirement was not undermined by Sell’s actions.

What about the use of the drug dog at the apartment door, inside the apartment building? Doesn’t that violate Florida v. Jardines, 133 S. Ct. 1409 (2013)? Parisi didn’t challenge this aspect of the police officers’ actions (¶11 n.3); and in any event the search occurred before Jardines, which would presumably allow the police to invoke the good-faith exception to the exclusionary rule. See State v. Scull, 2014 WI App 17, 352 Wis. 2d 733, 843 N.W.2d 859, currently under review in the Wisconsin Supreme Court.

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