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.