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Exigency – Destruction of Evidence (Drugs) – Entry of Residence – Odor of Burning Marijuana

State v. Vanessa D. Hughes, 2000 WI 24, 233 Wis. 2d 280, 607 N.W.2d 621, reversing unpublished decision, cert. denied, __ U.S. __ (2001).For Hughes: Andrea Taylor Cornwall, SPD, Milwaukee Appellate.

Issue1: Whether “the combination of the strong odor of marijuana coming from the apartment, and the knowledge on the part of the occupants that the police are standing outside, amount to exigent circumstances justifying the warrantless entry and subsequent search”.

Holding: The odor gave the police probable cause to believe that the apartment contained evidence of a crime; the occupants’ knowledge of the police presence established an exigency, namely risk of destruction of the evidence; together, these factors justified warrantless entry. ¶¶22, 26.

Police went to Hughes’ apartment to investigate various complaints. They smelled marijuana when the door opened, and they entered, ostensibly to prevent destruction of drug evidence. ¶¶3-5. Warrantless police entries are presumptively prohibited, but justifiable if based on probable cause to believe the residence contains evidence of a crime as well as exigent circumstances. ¶18. “The unmistakable odor of marijuana coming from Hughes’ apartment provided” probable cause. ¶22. (The court also mentions the “high drug activity” known to go on at the site, ¶23, but odor alone seems to be enough in the court’s view.) The court also finds exigent circumstances in the danger of evidence destruction: “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.” ¶26.The court is careful to note that exigent circumstances are not based on odor of the drug alone, but on the additional fact that “the suspects here were fully aware of the presence of the police.” ¶27. (This additional fact distinguishes the case from prior precedent, most prominently Johnson v. United States, 333 U.S. 10 (1948), and State v. Scott Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997) — “the apartment occupants had every incentive to intentionally destroy evidence once they knew the police were present outside. Had the officers stayed outside and called for a warrant, the evidence very likely would have been lost.” ¶¶27-28.) The court also stresses “that this is not a situation in which the exigency was created by the police themselves, which would generally not justify a warrantless search of a home.” ¶28 n. 7.

Probable cause, of course, is also required; the court had no difficulty determining that the smell of burning marijuana (coupled with the fact that “the building was an area of high drug activity”) created a “fair probability” that marijuana was present in the apartment, ¶¶22-23. However, there is contrary authority for the idea that the smell of the drug alone is enough for probable cause: State v. Steelman, 93 S.W.3d 102, 108 (Tex. Crim. App. 2002) (“The mere odor of burning marijuana did not give the officers probable cause to believe that [defendant] had committed the offense of possession of marijuana in their presence. The odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home.”); State v. Huff, Kansas SCt No. 90,850, 6/25/04 (“Moreover, few jurisdictions have held that the smell of marijuana emanating from a private residence alone is sufficient to establish probable cause to support a search warrant …. Generally something more than ‘plain smell’ is required.” [Cites.]). The Steelman result, it should be noted, was later qualified in Estrada v. State, TX Crim App No. PD-1629-03, 1/26/05, which reaffirms Steelman‘s principle that mere odor of burning marijuana doesn’t provide probable cause to arrest a specific individual, where several people are present, but then suggests that a warrantless search of a residence might be something else. Nonetheless, the court isn’t entirely clear on this point, because although it did find probable cause it was on the basis of facts additional to odor, including specific information received by the police that minors were inside the house drinking alcohol and smoking marijuana. And still further qualified, inParker v. State, TX Cr App No. PD-0250-05 (“the odor of marihuana emanating from a residence, by itself, is insufficient to establish both the probable cause and statutory authority required for a warrantless arrest of a particular person inside”; court apparently means that notwithstanding probable cause from odor, other factors must support exigency required for warrantless entry).

ContrastCommonwealth v. Hatcher, KY SCt No. 2004-SC-0242-DG, 5/18/06 (observation of pipe alone didn’t amount to probable cause, even though in officer’s experience and training its predominant use was for smoking marijuana, where officer couldn’t actually see any marijuana or residue in pipe from his vantage point in doorway).

See State v. Rodriguez, NH SCt No. 2007-107, 4/8/08 (smell of burning, as distingusihed from burned, marijuana created exigency; Hughes followed).

Issue2: Whether possession of marijuana is a serious enough crime to justify warrantless entry under the rationale of Welsh v. Wisconsin, 466 U.S. 740 (1984).Holding: Welsh establishes no categorical rule, except “that the minor, noncriminal, nonjailable traffic violation in that case (first offense drunk driving) was” insufficient serious to justify warrantless entry. ¶31. While Welsh does require analysis of the gravity of the offense at issue, “evaluation of the overall penalty structure for marijuana offenses,” including the graduated scale of potential penalties for marijuana possession, indicates that marijuana possession “is treated significantly more seriously than the noncriminal, nonjailable first offense drunk driving violation involved in Welsh[.]” ¶¶36-39.

As suggested immediately above, Welsh v. Wisconsin bars warrantless entry, on an exigency basis, to investigate nonserious crimes. While certainly part of the exigency analysis, this doctrine imposes a distinct bar, and therefore should be discussed separately. The court, without quite saying so, in effect limits Welsh to its precise facts. ¶30. Welsh cautions that a “minor offense” would ordinarily not generate “exigent circumstances” justifying warrantless entry, 466 U.S. at 750:

Our hesitation in finding exigent circumstances, particularly when warrantless arrests in the home are at issue, is especially appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government’s interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.

So, what’s a “minor offense”? Welsh approvingly cites the dissent in Payton v. New York, 445 U.S. 573 (1980), for recognizing that it is “(t)he felony requirement (that) guards against abusive or arbitrary enforcement and ensures that invasions of the home occur only in case of the most serious crimes”. Welsh, id. The Court also quotes with approval a concurring opinion in McDonald v. United States, 335 U.S. 451, 459-60 (1948):

It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it…. When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant.

Welsh, 466 U.S. at 750-51.

How likely is it that the United State Supreme Court meant to limit its holding to the exact penalty scheme presented by Wisconsin’s drunk driving legislation? See this canvass of relevant caselaw from other jurisdictions, derived by State v. Holland, 328 N.J. Super. 1, 744 A.2d 656, 661 (2000) (subsequent appeal, discussing independent-source doctrine, State v. Holland, 176 N.J. 344, 823 A.2d 38 (2003)):

Nonetheless, there are reported cases from other jurisdictions which hold that because the smell of burning marijuana is itself proof that evidence of criminal conduct is being destroyed, the detection of that smell establishes ‘exigent circumstances.’ See State v. Decker, 119 Ariz. 195, 580 P.2d 333 (1978); State v. Kosman, 181 Ariz. 487, 892 P.2d 207 (Ct.App.1995); Mendez v. People, 986 P.2d 275 (Colo.1999); People v. Baker, 813 P.2d 331 (Colo.1991); Joseph v. State, 3 S.W.3d 627 (Tex.App.1999). These cases, however, fail to cite Welsh, supra, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732. The cases from other jurisdictions which cite Welsh hold that the smell of burning marijuana does not evidence an offense which is sufficiently grave to justify entering a residence without a warrant. See State v. Curl, 125 Idaho 224, 869 P.2d 224 (1993), cert. denied, 510 U.S. 1191, 114 S.Ct. 1293, 127 L.Ed.2d 646 (1994);Haley v. State, 696 N.E.2d 98 (Ind.Ct.App.1998); State v. Beeken, 7 Neb.App. 438, 585 N.W.2d 865, 872 (1998) (dictum); State v. Wagoner, 126 N.M. 9, 966 P.2d 176 (Ct. App.), certif. denied, 125 N.M. 654, 964 P.2d 818 (1998); State v. Ackerman, 499 N.W.2d 882 (N.D.1993); State v. Robinson, 103 Ohio App.3d 490, 659 N.E.2d 1292 (1995); State v. Ramirez, 49 Wash. App. 814, 746 P.2d 344 (1987). In our view, it is this latter group of cases that correctly interpret the decision of the United States Supreme Court in Welsh, which, of course, is binding on us under the Supremacy Clause of the United States Constitution.

See also:

  • People v. Hua, Cal App No. A116578, 1/11/08 (“California has chosen to treat the offense of possession of less than 28.5 grams of marijuana as a minor offense that is nonjailable even for repeat offenders. Under Welsh, McArthur and Thompson, one consequence of that decision is to preclude officers who see this offense being committed from entering a home without a warrant or consent to seize the offender or the contraband, in order to prevent the imminent destruction of evidence of the offense.”);
  • State v. Duran, 2007 UT 23, ¶9 (“We decline to pare back a fundamental constitutional guarantee where the commission of an offense–in this case, smoking marijuana–involves as its incidental but inevitable consequence the destruction of evidence.”);
  • Commonwealth v. Demshock, 2004 PA Super 263, ¶16, 7/8/04 (to effect that smell of burnt marijuana “represents a considerably less serious offense than the grave offense (particularly one of violence)” which dispenses with need for warrant);
  • State v. Huff, Kansas SCt No. 90,850, 6/25/04 (exigent circumstances justification for warrantless entry of home requires violent offense: “Loud music and the smell of marijuana do not indicate that any suspect is likely to be charged with a violent offense”).

But for contrary authority see: State v. Rodriguez, NH SCt No. 2007-107, 4/8/08 (marijuana possession jailable, hence sufficiently serious to support warrantless entry); Posey v. Commonwealth, KY SCt No. 2004-SC-0060-DG, 2/23/06 (simple possession sufficiently serious under Welsh — because it carries a penalty of 12 months imprisonment — such that smell of burning marijuana and consequent imminent destruction of crime evidence justifies warrantless entry; cases collected); Estrada v. State, TX Crim App No. PD-1629-03, 1/26/05 (where police did have probable cause to believe that marijuana was being consumed inside house, warrantless entry justified by exigent-circumstance need to prevent destruction of evidence; a very sloppy opinion which among other things mentions that the occupants were minors but then fails to factor that into the determination of exigency); State v. Rideout, 2005 WY 141 (smell of burning marijuana from inside residence supports both probable cause to arrest or search and exigent circumstances for warrantless entry;Welsh limited to nonjailable offenses); People v. Thompson, Cal No. S130174, 6/1/06 (Welsh limited to nonjailable offenses, hence doesn’t bar warrantless entry to effecuate arrest and blood test of DUI suspect, where jail was potential penalty for DUI offense).

For authority that the odor of a substance (ether) associated with manufacture of methamphetamine, along with probable cause to believe that methamphetamine is indeed being manufactured, does not establish an exigency justifying warrantless entry of a private residence, see People v. Gott, Ill. App. No. 5-02-0580, 1/24/04; State v. Hemphill, LA App No. 41,526-KW, 11/17/06 (like effect). That result, however, seems uncommon; for survey of “(n)umerous cases [which] have upheld limited searches conducted by officers without a warrant to eliminate the potential hazards of a methamphetamine lab when the officers had probable cause to believe they had discovered an ongoing methamphetamine lab,” see State v. Simmons, Iowa SCt, No. 25 / 04-1327, 5/19/06. Like effect:State v. Meeks, TN SCt No. 34,241, 9/2/08; State v. White, 2008-Ohio-2432; Holder v. State, IN SCt No. 87S05-0505-CR-194, 5/18/06 (“Several courts have concluded that a belief that an occupied residence contains a methamphetamine laboratory, which belief is found on probable cause based largely on observation of odors emanating from the home, presents exigent circumstances permitting a warrantless search for the occupants’ safety.”); U.S. v. Elder, 7th Cir No. 05-3106, 11/1/06 (entry to investigate meth lab, following 911 call, proper: “that drug dealers often use guns and knives to protect their operations created a possibility that violence had been done”). But see, State v. Lawson, WA App No. 33401-1-II, 10/10/06 (strong ammonia odor insufficient to trigger emergency doctrine: “We are unwilling to extend the doctrine to authorize warrantless entries where the officers express only a generalized fear that methamphetamine labs and their ingredients are dangerous to people who might live in the neighborhood”; dissent string cites cases to the contrary, such as Gott, fn. 6).

Compare U.S. v. Gomez-Moreno, 5th Cir No. 05-20921, 2/12/07 (can’t use knock and talk to create exigency); U.S. v. Coles, 3rd Cir No. 04-2134, 2/9/06 (police may not impermissibly create the very exigency on which they rely for nonconsensual entry; thus, court must look to reasonableness and propriety of police tactics leading to the exigency on which the warrantless entry relies); U.S. v. Mowatt, 4th Cir No. 06-4886, 1/25/08 (same effect; and this: argument that “Mowatt’s smoking the marijuana was itself destruction of evidence … is clearly foreclosed by Johnson, in which illegal drugs were also being smoked, but in which the Supreme Court held there were no exigent circumstances justifying a warrantless entry.”).


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