Nov. 24, 2014 – Oshkosh police responded to a complaint that someone was smoking marijuana at an apartment complex. Recently, a state appeals court ruled that police did not violate the suspect’s Fourth Amendment rights despite entering without a warrant.
Specifically, a three-judge panel for the District II Court of Appeals in State v. Parisi (2014AP474-CR), concluded that a warrantless entry was justified because police reasonably believed the suspect would destroy evidence if they waited any longer.
A neighbor called police to report the smell of burning marijuana emanating from Jennifer Parisi’s apartment. The tipster said the odor was present several times a week for several months. The responding police officer had a sinus infection and couldn’t smell burning marijuana, but testified that he could hear a male and female voice inside.
The officer knocked on the door three separate times. The people inside, the officer said, stopped talking and no one answered. Another officer, who was stationed at the back patio door, came into the apartment hallway and confirmed the smell of marijuana.
Then several additional officers arrived on scene, one with a drug-sniffing dog. The dog alerted to Parisi’s apartment. The officers decided to enter without a warrant, later testifying to a belief that evidence would be destroyed if they did not enter right then.
Police entered through the back patio door, which they said was slightly ajar. No persons were found inside the apartment. One officer suggested that the people may have escaped when the second officer left his post at the back patio.
On the coffee table and in plain view, police found a rolled up plastic baggie, later identified as marijuana. Officers then received a warrant to search the apartment.
Inside they found more baggies of marijuana and $630 in cash. Parisi was charged with possession of tetrahydrocannabinols (THC) with intent to deliver. She pled no contest after the circuit court denied her motion to suppress the evidence.
On appeal, Parisi said the evidence should have been suppressed because there were not exigent circumstances to justify the warrantless entry by police.
The three-judge panel noted that the Fourth Amendment protects persons from warrantless searches and seizures, unless an applicable exception applies.
One of them is exigent circumstances, which allows police to enter a home without a warrant if police believe entry is necessary to prevent the destruction of criminal evidence. Police must reasonably believe that evidence would be destroyed.
“In this case, with the occupants of Apartment 108 quieting or ceasing their conversation and not answering the door after Sell knocked and announced the police presence, ‘the possibility of the intentional and organized destruction of the drug’ existed,” wrote Judge Mark Gundrum, citing a Wisconsin Supreme Court case.
Parisi argued that the search was unreasonable because police weren’t certain that anyone was inside the apartment and nobody was there when they entered.
Although the circuit court did not make a specific finding on that fact, the appeals panel said the testimony of officers who heard voices was “reasonable and believable.”
“[T]wo officers smelled the odor of burning marijuana, and the drug dog alerted to the door of Apartment 108,” Judge Gundrum noted. “In that it is very unlikely that marijuana was burning without the aid of one or more persons, this provided additional support for the belief that there were persons in the apartment.”
The panel also clarified that the exigent circumstances exception does not require police to believe evidence is in the process of being destroyed. The exception applies if police believe there is a “risk” of destruction, Judge Gundrum noted in the opinion.
Finally, the panel rejected Parisi’s argument that the police officer created the exigent circumstances by knocking on the door, so the exception should not apply.
“This position has been soundly rejected by our supreme court and the United States Supreme Court,” wrote Judge Gundrum, noting similar knock-and-announce cases.
