State v. Dwight M. Sanders, 2007 WI App 174, affirmed on different ground, 2008 WI 85
For Sanders: Patrick M. Donnelly, SPD, Madison Appellate
¶32 In both Hughes and Garrett, the police officers actually detected the presence of drugs within the residence before they entered without a warrant. In Hughes, the officers smelled the “unmistakable odor of marijuana coming from [the defendant’s] apartment.” Hughes, 233 Wis. 2d 280, ¶¶5, 22. In Garrett, the officers knew that an individual had purchased cocaine from inside of the defendant’s apartment and observed the defendant standing in the doorway “holding a clear plastic bag containing a white substance that the officer believed to be cocaine.” Garrett, 248 Wis. 2d 61, ¶¶2-3. Furthermore, in both Hughes and Garrett, the defendants lived in apartment complexes with heavy drug activity. Hughes, 233 Wis. 2d 280, ¶¶2, 3; Garrett, 248 Wis. 2d 61, ¶¶2-3. Here, as we have explained, the officers had no such evidence of the presence of drugs either on Sanders’ person or, more importantly for this inquiry, in his residence. Furthermore, the officers had no information linking Sanders’ residence to previous drug activity. Sanders’ failure to cooperate with police and his holding a canister in one hand and money in the other, without more direct evidence connecting drug activity to the residence, falls far short of raising a “fair probability” that evidence of illegal drug activity would be found in Sanders’ home. The State cannot justify the police entry on the third exigent circumstances factor.