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Odor of burning weed justified warrantless entry of home

State v. B.W.R., 2020AP1726, District 2, 4/28/21 (one-judge decision; ineligible for publication); case activity

The odor of marijuana gave police probable cause to believe evidence of a drug crime would be found in B.W.R.’s home and the odor plus the occupants’ awareness the police were knocking gave the police reason to conclude the evidence would be destroyed if they took time to get a warrant.

Elkhorn police officers were dispatched to a call from an apartment dweller complaining about the strong odor of marijuana from an adjacent unit, a place police previously suspected of being the scene of drug activity. After confirming the olfactory evidence themselves, the officers knocked on the door of the apartment. “Brady” (the pseudonym given the juvenile in this case) peeked out from behind a window blind but didn’t open the door. After officers knocked again, Brady’s mother opened the door. More odor of marijuana emanated from the apartment and the police asked to come in. Mom said no and began to shut the door, but the officers “leaned into” the door and went in anyway. Drugs were found and seized and Brady was charged. (¶¶3-7).

The warrantless entry was legal under the exigent circumstances exception to the warrant requirement, which requires probable cause to believe evidence of a crime will be found in the residence and an exigent circumstance—here, a risk that evidence will be destroyed if time is taken to obtain a warrant. The test for exigency is objective: whether an officer, under the facts as they were known at the time, would reasonably believe that delay in procuring a search warrant would risk destruction of evidence. State v. Parisi, 2014 WI App 129, ¶9, 359 Wis. 2d 255, 857 N.W.2d 472.

Brady concedes there was probable cause, so the dispute is about exigent circumstances. The court finds that’s present because the odor of burnt marijuana  gives reason to belief the drug is being consumed and therefore destroyed, ¶15, citing State v. Hughes, 2000 WI 24, ¶26, 233 Wis. 2d 280, 607 N.W.2d 621, and because Brady and his mom were aware the police were there, making it likely they’d prevent evidence from being discovered, including by destroying the evidence, ¶¶16-17, again citing Hughes, 233 Wis. 2d 280, ¶¶26-27, 35, 39.

Brady relies on State v. Kiekhefer, 212 Wis.2d 460, 569 N.W.2d 316 (Ct. App. 1997), but the court isn’t persuaded. There the police made an unannounced entry into a bedroom from which the odor of marijuana was wafting, but there was no indication Kiekhefer was aware the police were there and, thus, no risk of destruction of evidence (except, of course, through its being consumed, given the odor of burning marijuana). Oh, and that was a bedroom, which limits the opportunities to destroy, unlike an entire apartment, with its sinks and toilets, as in Brady’s case. (¶¶18-20).

This kind of warrantless entry would likely not have happened if Brady lived 20 miles or so south of Elkhorn, in the worker’s paradise of Illinois, where marijuana has lost its status as a dreaded killer.

Doonesbury Comic Strip for September 23, 1971

 

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{ 5 comments… add one }
  • Elizabeth Gamsky Rich May 7, 2021, 3:51 pm

    Hmmm. How did they know it wasn’t legal hemp? There’s a CBD store across the hall from my office. It smells like a college dorm in there.

  • James Peterson May 8, 2022, 6:13 pm

    Exactly right. With CBD, there is arguably no longer probable cause or exigent circumstances. I had CBD. I told a cop what it was. I showed him receipts and the original packing. But pretty quickly, he was in my house asking why some of it was in separate bags. I’m literally explaining to him how harvest works for CBD and how a person can get a pound of shake for $100. None of which is any of his business. I would love to see the courts flooded with CBD cases and CBD lab results, but when this cop finally got through to the home office, they told him they lab is backed up 4 months and that if it looks and quacks like a duck, it’s probably a duck. Not cool. So now I can’t smoke CBD in my home without getting searched and treated like a suspect, in Wisconsin, which has a very large beer lobby.

  • Kevin Kovacic June 6, 2022, 3:07 pm

    They can’t keep kicking in doors over the smell of hemp. Hemp smells just like marijuana and is sold at almost ever gas station in Wisconsin. They police can’t pretend “they suspect a crime is being committed” when they smell a smell they most likely is gas station cbd hemp flower

  • Kevin Kovacic June 6, 2022, 3:10 pm

    I got arrested last week for hemp I legally grew last season. It was all clearly marked and labeled and vacuum sealed. Oconto county is holding it until they test it to see if it’s hemp or marijuana. But they won’t tell me when they will test it or anything. They took my whole inventory. I invested over 3,000$ to start growing hemp legally last year. I am the wautoma cannabis queen llc and I had my constitutional rights trampled on by the oconto/forest county drug interdiction squad on I41 north of Green Bay 5/20/22 they held me in jail for 3 days

  • Kevin Kovacic June 6, 2022, 3:12 pm

    Kevin Kovacic, the wautoma cannabis queen llc got arrested last week for hemp I Tammy Kovacic, legally grew last season. It was all clearly marked and labeled and vacuum sealed. Oconto county is holding it until they test it to see if it’s hemp or marijuana. But they won’t tell me when they will test it or anything. They took my whole inventory. I invested over 3,000$ to start growing hemp legally last year. I am the wautoma cannabis queen llc and I had my constitutional rights trampled on by the oconto/forest county drug interdiction squad on I41 north of Green Bay 5/20/22 they held me in jail for 3 days

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