State v. B.W.R.

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 28, 2021
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2020AP1726 Cir. Ct. No. 2019JV17

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT II

IN THE INTEREST OF B.W.R., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

PETITIONER-RESPONDENT,

V.

B.W.R.,

RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Walworth County:
DAVID M. REDDY, Judge. Affirmed.
No. 2020AP1726

¶1 NEUBAUER, C.J.1 Brady2 appeals from a delinquency order and
the denial of his motion to suppress evidence obtained following law enforcement
officers’ warrantless entry into his apartment. He asserts the entry was unlawful
and all evidence flowing from it must be suppressed. Because we conclude the
entry was justified by the existence of probable cause and exigent circumstances,
we disagree and affirm.

Background

¶2 An evidentiary hearing was held on Brady’s suppression motion at
which two City of Elkhorn police officers collectively provided the following
evidence.

¶3 On February 1, 2019, at approximately 10:07 p.m.,
on-duty police, Officer Michael Finster and Sergeant Daniel Croak, were
dispatched to an apartment building to investigate a complaint by the resident of
Unit D about marijuana use in the next-door Unit C. Finster and Croak, who had
been in law enforcement for three and one-half years and over thirteen years
respectively, were in full-duty uniform.

¶4 The officers spoke with the complainant at Unit D, and Croak
stepped inside Unit D and immediately smelled the strong odor of marijuana. The
neighbor stated that he noticed the odor upon arrival at his home shortly before

1
This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20).
All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.
2
We use the same pseudonym the juvenile uses in briefing to protect his confidentiality.

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No. 2020AP1726

and that the neighbors in Unit C regularly smoked marijuana, which he could
smell. Finster also smelled burnt marijuana coming from Unit C.

¶5 Croak was familiar with Unit C from prior police contacts and was
aware of suspected drug use in the apartment, specifically of Brady dealing drugs
on the property beginning approximately a year earlier.

¶6 Finster knocked on the door of Unit C while Croak was standing
behind him. Brady pulled a closed blind away from the window next to the door
and looked out at the officers. When Brady did not open the door, the officers
knocked again. Tammy, who the officers recognized as Brady’s mother from
prior contacts, opened the door and the officers smelled a strong odor of burnt
marijuana coming from inside the apartment.

¶7 Finster told Tammy about the complaint, confronted her about the
odor, and asked to enter. She said no, and as she began to shut the door, Finster
leaned into it and the officers entered the apartment. The officers discovered the
evidence leading to the drug-related charges in this case.

¶8 The circuit court denied the suppression motion and Brady was
ultimately adjudicated delinquent and sentenced. He now appeals.3

3
The disposition order before us on appeal encompassed other charges from separate
cases that are not relevant to this appeal.

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No. 2020AP1726

Discussion

¶9 The issue is whether exigent circumstances supported the
warrantless entry into the apartment. Brady concedes that the officers had
probable cause to believe that the residence contained evidence of a crime.
However, he contends the entry was unlawful because exigent circumstances did
not exist. We disagree.

¶10 As we stated in State v. Parisi, 2014 WI App 129, 359 Wis. 2d 255,
857 N.W.2d 472:

Warrantless entry into a residence is generally
prohibited by the Fourth Amendment to the United States
Constitution. An exception to this rule allows for such
entry where there is probable cause to believe evidence of a
crime will be found in the residence and there is “a risk that
evidence will be destroyed” if time is taken to obtain a
warrant, i.e., an exigent circumstance. “In such instances,
an individual’s substantial right to privacy in his or her
home must give way to the compelling public interest in
effective law enforcement.” The test for whether an
exigent circumstance existed is an objective one—“whether
a police 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.”

Id., ¶9 (citations omitted). It is the state’s burden to show that an entry without a
warrant is “both supported by probable cause and justified by exigent
circumstances.” See State v. Robinson, 2010 WI 80, ¶24, 327 Wis. 2d 302, 786
N.W.2d 463. When reviewing an order granting or denying a motion to suppress
evidence, we uphold a circuit court’s findings of historical fact unless they are
clearly erroneous, but “we independently apply constitutional principles to those
facts.” Id., ¶22.

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No. 2020AP1726

¶11 With good reason, Brady concedes that the officers had probable
cause to believe that the apartment contained evidence of a crime. Nevertheless,
we briefly address the issue as it provides foundation for the exigent circumstances
analysis.

¶12 “The quantum of evidence required to establish probable cause to
search is a ‘fair probability’ that contraband or evidence of a crime will be found
in a particular place.” State v. Hughes, 2000 WI 24, ¶21, 233 Wis. 2d 280, 607
N.W.2d 621 (citation omitted); see also Robinson, 327 Wis. 2d 302, ¶3
(concluding officers had probable cause to search because evidence of illegal drug
activity “would probably be found” in the place to be searched). Our supreme
court has held that “[t]he unmistakable odor of marijuana coming from [a
suspect’s] apartment provide[s] this fair probability.” Hughes, 233 Wis. 2d 280,
¶22. Similarly, here, the unmistakable odor of marijuana coming from the
apartment provided “a ‘fair probability’ that contraband or evidence of a crime
[would] be found” there. See id., ¶21.

¶13 The officers testified that they were dispatched to the apartment to
investigate marijuana use in Unit C. They spoke with the neighboring
complainant and noted the odor. When Tammy opened the door, they confirmed
the smell of marijuana coming from Unit C. The officers reasonably concluded
that marijuana use was taking place in Unit C. Based upon these facts, as in
Hughes, there was a “fair probability” here that evidence of a crime—the

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No. 2020AP1726

possession of marijuana—would be found in Unit C. Thus, the officers had
probable cause to search the residence for evidence of such crime.4

¶14 As it pertains to the facts here, “[t]he test for whether an exigent
circumstance existed is an objective one—‘whether a police 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.’” See Parisi,
359 Wis. 2d 255, ¶9 (quoting Hughes, 233 Wis. 2d 280, ¶24). The undisputed
facts of this case squarely satisfy that test.

¶15 We first note here that the smell of burnt marijuana itself indicated
evidence was being destroyed through the process of burning. See id., ¶10 (“Our
supreme court has held that the smell of burning marijuana gives ‘rise to a
reasonable belief that the drug—the evidence—was likely being consumed by the
occupants and consequently destroyed.’” (quoting Hughes, 233 Wis. 2d 280,
¶26)). However, an even greater exigency is

the possibility of the intentional and organized destruction
of the drug by the apartment occupants once they were
aware of the police presence outside the door. Marijuana
and other drugs are highly destructible…. It is not
unreasonable to assume that a drug possessor who knows
the police are outside waiting for a warrant would use the
delay to get rid of the evidence.

Hughes, 233 Wis. 2d 280, ¶26; see also Robinson, 327 Wis. 2d 302, ¶31 (“Drugs
like marijuana are easily and quickly destroyed.”).

4
While Brady contends that the officers’ testimony regarding prior complaints was not
substantiated and therefore unreliable, this information is not required in order to find that
probable cause or exigent circumstances supported the entry.

6
No. 2020AP1726

¶16 The risk was significant that if the officers delayed entry to obtain a
warrant the occupants would have engaged in “the intentional and organized
destruction of the drug.” See Hughes, 233 Wis. 2d 280, ¶¶26, 39. Both Brady
and Tammy were in the apartment and aware of the officers’ presence as well as
the complaint of marijuana use. An officer could reasonably believe that the
occupants were likely to “attempt to prevent evidence from being discovered by
the police, including through destruction of such evidence.” See Parisi, 359
Wis. 2d 255, ¶13.

¶17 In Hughes, our supreme court held that exigent circumstances exist
where there is a strong odor of marijuana emanating from a residence and
occupants simply become aware of police outside the door. Hughes, 233 Wis. 2d
280, ¶¶1, 27, 35 (adding that in such circumstances the occupants “ha[ve] every
incentive to intentionally destroy evidence” and the likelihood that they will do so
is “extremely high”).5

¶18 Brady cites to our decision in Kiekhefer for his contention that the
warrantless entry into his home did not fall within the exigent circumstances
exception. See State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App.
1997). Kiekhefer does not aid Brady.

¶19 In Kiekhefer, we found unlawful the officers’ unannounced entry
into Kiekhefer’s bedroom after they detected the odor of burning marijuana

5
Unlike in State v. Phillips, No. 2015AP927-CR, unpublished slip op. ¶30 (WI App
June 14, 2016) (an unpublished case Brady cites for persuasive value), where the officers smelled
raw marijuana and there was no indication that anyone was in the residence other than a small
child who had exited, here the officers smelled burnt marijuana and the occupants were still in the
apartment.

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No. 2020AP1726

coming from behind the closed bedroom door. Kiekhefer, 212 Wis. 2d at 466,
474-75. As we noted in Parisi, however, in Kiekhefer there was “‘no indication
that Kiekhefer was aware’ of the officers’ presence outside his door,” Parisi, 359
Wis. 2d 255, ¶16 (quoting Kiekhefer, 212 Wis. 2d at 477), with the implication
being that in such a circumstance there was no risk of the destruction of evidence
if the officers waited for a warrant. See also Hughes, 233 Wis. 2d 280, ¶28
(distinguishing Kiekhefer because Kiekhefer “was in his room apparently unaware
of [the police officers’] presence until they entered without a warrant”).
Furthermore, our decision in Kiekhefer was also based upon our conclusion that
the suspected contraband in that case—“a large quantity of marijuana”—“could
not be easily or quickly destroyed in Kiekhefer’s bedroom.” Kiekhefer, 212
Wis. 2d at 478. In Parisi, we distinguished the factual situation before us in that
case from that before us in Kiekhefer because in Parisi, “the occupants would
have had an entire apartment, presumably including sinks and toilets, to utilize for
destruction of the suspected marijuana.” Parisi, 359 Wis. 2d 255, ¶17.

¶20 Unlike the situation in Kiekhefer, in this case, when Brady peered
out the window and saw the police, declining to open the door, he was well aware
of the officers’ presence and with that knowledge remained in the location where
evidence of criminal activity was likely located. Also, unlike the situation in
Kiekhefer but akin to the situation in Parisi, here the occupants “would have had
an entire apartment, presumably including sinks and toilets, to utilize for
destruction of the suspected marijuana.” See Parisi, 359 Wis. 2d 255, ¶17.

¶21 That the officers did not hear anything indicating the destruction of
evidence was underway is of no moment under these facts. “Drugs like marijuana
are easily and quickly destroyed.” Robinson, 327 Wis. 2d 302, ¶31. “In deciding
whether actions are permissible under the Fourth Amendment, we need only

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No. 2020AP1726

determine that the actions of law enforcement were reasonable.” Hughes, 233
Wis. 2d 280, ¶23. Furthermore, “[o]ur review of the exigent circumstances is
‘directed by a flexible test of reasonableness under the totality of the
circumstances.’” State v. Phillips, 2009 WI App 179, ¶8, 322 Wis. 2d 576, 778
N.W.2d 157 (quoting State v. Smith, 131 Wis. 2d 220, 229, 388 N.W.2d 601
(1986)). At the moment Tammy began to shut the door, the officers’ actions in
entering without a warrant were reasonable under the totality of circumstances.6

¶22 For the foregoing reasons, we conclude the officers had probable
cause to enter the apartment without a warrant and exigent circumstances justified
their decision to do so.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)4.

6
Brady contends that the officers should have obtained a warrant after talking with the
neighbor—that because they had sufficient probable cause at that juncture, they should have
stopped to obtain a warrant. However, Brady also appropriately acknowledges that the officers
were not required to do so. As Brady notes, the officers could lawfully knock to obtain consent
without obtaining a warrant, even if they had sufficient evidence to do so. See Kentucky v King,
563 U.S. 452, 466-67 (2011) (where the Court also held that prior cases denying exigency based
on arguments premised on “police-created exigency” by knocking and announcing have been
abrogated); see, e.g., State v. Robinson, 2010 WI 80, ¶32, 327 Wis. 2d 302, 786 N.W.2d 463
(police conduct themselves in “utterly appropriate and lawful manner” when knocking and
announcing).

We do not consider Brady’s suggestion that the exigency analysis should be different
because the evidence discovered with this entry led to a juvenile disposition as it is undeveloped.
See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (court of appeals
need not consider inadequately developed arguments).

9