In any criminal case that involves physical evidence, you can expect some scrutiny from criminal defense attorneys of how law enforcement seized the evidence. One of a defendant’s basic rights in any trial is their Fourth Amendment right to be free from an illegal search or seizure. When police enter a home without a warrant, their entry will almost always be challenged. This is exactly what happened when police went into a home after smelling burning marijuana. However, in the case of In the Interest of B.W.R., the Wisconsin Court of Appeals gave officers very wide latitude for a warrantless search.

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The basic rule is that all evidence that results from an illegal search or seizure is not admissible in a criminal trial. Police must either obtain a warrant or have probable cause to believe that a crime is being committed. One exception to the Fourth Amendment’s requirement for a warrant depends on exigent circumstances. This depends on imminent danger or the destruction of necessary evidence.

Police Entered After Knocking and Being Refused Entry

In this case, an apartment dweller called the police to complain about the smell of marijuana coming from another apartment. This was a location that was already well-known to the police since they had previous suspicions of drug activity there. Police showed up at the scene, smelled marijuana themselves, and sought to enter the apartment. They knocked on the door, seeing a juvenile inside. However, the people inside the apartment did not open the door.

After police knocked again, the juvenile’s mother opened the door, but she would not let police inside. With the door partially open, officers pushed themselves into the doorway and entered the apartment. There, they found drugs and seized the evidence. They arrested the juvenile and charged him with drug crimes.

Here, the juvenile challenged his conviction on the grounds that the officers violated his constitutional rights by entering the apartment. He did not dispute that there would have been probable cause if the officers had tried to obtain a warrant. However, they chose to enter without a warrant. The juvenile’s appeal claimed that there were not the exigent circumstances necessary to support entering the apartment without a warrant.

Smoking Marijuana Constitutes its Imminent Destruction

This is where the court considered the actual circumstances of what happened and reached a ruling that will be helpful to Wisconsin law enforcement in the future. After stating the general rule, the court analyzed what would constitute the imminent destruction of evidence, such that officers could seize it without a warrant.

First, the court addressed whether there was a “fair probability” that evidence would be found in the apartment. The odor of burning marijuana would be enough to establish that. However, nobody was even challenging whether probable cause existed. The issue was more about whether police could enter when the mother said that they could not.

Smelling Marijuana Could Be Read as Permission for Police to Enter

Here, the court’s ruling was very broad. The mere fact that they smelled marijuana being burned was enough to allow them to enter. The act of smoking marijuana (and, in the process, burning it) would be enough to convince officers that it was being destroyed. Just by turning the actual marijuana into ash, the suspect would be destroying evidence. The court did not draw any distinction between flushing drugs down the toilet and consuming them. In the court’s eyes, the two are the same.

One must take a step back and realize the implications of this ruling for Wisconsin defendants. Officers can break down a door and enter any place that they smell marijuana because the smell of marijuana alone is an exigent circumstance that would indicate that someone is trying to destroy evidence. The key requirement is that the suspect is aware of the officer’s presence. This gives law enforcement very broad rights to enter a private residence.

While this court noted that burning marijuana is the same as destroying it, apparently warrantless entry after the smell of marijuana is still prohibited when the suspect has no idea that the police are outside the door.

Given this ruling and the seemingly endless broadening exceptions to the Fourth Amendment, it is essential for a defendant to have an attorney in drug cases. Police officers will often enter a residence first when they think that they may have grounds and then find a way to justify the search later. In many cases, courts will accept prosecutors’ arguments for why the search was allowed. This places the average defendant in a vulnerable spot.

Challenging Illegal Seizures of Evidence

While Fourth Amendment protections seem broad, law enforcement has a way of chipping away at them through the ever-expanding exceptions that threaten to swallow the rule. There are numerous ways of challenging searches in court, including:

  • The search warrant was not backed by probable cause
  • Police did not obtain a warrant, and no exceptions to the requirement applied
  • Police validly seized the evidence, but did not maintain the proper chain of custody afterward

If the police have conducted an illegal search, what they seize (and anything derivative of it) could be excluded as “fruit of the poisonous tree.” However, your attorney would need to file a motion in limine in court to seek to have the judge exclude the evidence. Oftentimes, the success of your defense can come down to the ruling on this pre-trial motion.

Call Us Today to Speak with one of our Appleton Criminal Defense Attorneys

If you are facing drug charges, you need legal help as early in the proceedings as possible. Law enforcement can violate your rights at any point, and you need a lawyer to protect you from police overreach. The criminal defense attorneys at Hogan Eickhoff will fight on your behalf to make sure that your constitutional rights are respected. Call us today at (920) 450-9800 or contact us online to schedule your free initial consultation. This is not a call that you should delay.