*1 Plaintiff-Respondent-Petitioner, Wisconsin, State
v.
Defendant-Appellant.
Vanessa
D.
Hughes,
Supreme Court
5, 1999.
No.
argument
97-1121-CR. Oral
October
Decided
17, 2000.
March
For Taylor by argument Cornwall, assistant Andrea oral public defender. state involves a SYKES, J. This case S. 1. DIANE entry police a home. The officers into
warrantless question of the defendant's at the threshold were trespass- investigate complaint apartment about they opened, unexpectedly ing the door when marijuana strong immediately com- odor of detected distinct ing deduced a The officers also inside. from drug any be possibility would evidence of immediately destroyed enter, since the if did not pres- apartment their people alerted to were now question is, under these in the case The ence. strong odor of thе circumstances, does the combination apartment, coming from occupants knowledge part that the on the exigent standing circumstances outside, amount are subsequent justifying the warrantless reverse does, and therefore hold that it We search? circuit appeals that reversed decision court upholding search. order court's Sometime are as follows.1 facts The relevant City p.m. 1996, p.m. June on and 6:00 4:30 between and Scott Brad Schlei Officers Police Milwaukee suppression At the disputed. case are facts in this family and her testimony given the defendant hearing the *4 by given testimony with often conflicted members stating: credibility, finding trial court made officers. extremely testimony This credible. Kurth's] to be [Officer I found stand. I have officer, lady, telling the witness the truth on was people weren't other means that some that. That no doubt about certainly a consent telling that there truth. It also means testimony. I search, simply Kurth's personal on Officer to the 283 Marlock responded to a report of trespassing made Lucas, Richard a security guard at the Windsor Court Apartments, 1127 North 18th Street. The officers knew complex be an area of heavy drug activity where the police had made many arrests and had conducted in the sweeps past. 3. Upon at arriving Court, Windsor the officers
spoke directly Lucas, who informed them that the apartment manager had a standing trespass complaint against Webb, Michael Danny Smith and Marvin Webb, who were not welcome there because of their involvement with illegal drugs and because had caused trouble at complex Lucas past. that he reported had seen Smith and Michael Webb on premises and that they had entered Apartment 306, which was later identified as the defendant Vanessa Hughes' apartment. Officer Schlei was famil- that, turn, supports credibility
believe
then in
of the other
testimony.
officers in their
It
fact,
is the function of the trier of
court,
and not this
questions
resolve
weight
as to the
testimony
and the credibil-
ity of
Dejmal,
witnesses.
141, 151,
Estate
95 Wis. 2d
(1980).
N.W.2d 813
principle recognizes
This
the trial court's
ability to assess each witness's demeanor and
per-
the overall
suasiveness of
testimony
his or her
way
in a
appellate
that an
court, relying solely on a
transcript,
Thus,
written
cannot.
we
judge
consider the trial
to be the "ultimate arbiter of the credi-
bility
witness,"
of a
City
Allis,
v.
Posnanski
West
61 Wis. 2d
461, 465,
(1973),
iar with both past. the Apartment
¶ to to inves- 4. The officers went they They Although tigate. knocked the door. could on apartment, many and voices inside the hear loud music they response. apparent Concerned the received no apartment, peoplе Officer number of inside the Schlei up its arrival decided to call for back and await before knocking again. hallway in the 5. As Schlei and Marlock waited suddenly opened Apartment and
outside the door (a) immediately the confronted with officers were very strong marijuana coming apart- the odor of from (b) very Hughes, surprised ment, and Veronica way apparently sister, her was on defendant's who expect to the store and did not see two Milwaukee hallway. standing police in full officers uniform posses- officers, now She tried to slam door. beyond illegal activity a mere sion of evidence presence having trespass, their been revealed apartment through no action of their those inside changed own, situation. Concerned were faced drug destroy any people evidence inside would entry undertaken, not the officers if an immediate were closing prevented in.2 from the door went Veronica testimony in the from both Veronica is also record There when she Hughes that Veronica screamed saw and Vanessa course, very dramatically this, alerted the police; would have presence occupants apartment to the necessity prevent urgent evidence increased the However, clear the record whether it is not from destruction. immediately upon seeing officers Veronica screamed trial court apartment, after entered the and the never finding subject. made a on apartment. 6. There was initial chaos in the eight people
Seven or *6 were in the main room and two people began running hallway down the toward the apartment. safety, back bedrooms of the For their occupants put officers up ordered the their hands complied except Timothy remain still. All for one kept pockets. Gibbs, who his hands near his Officer up Schlei's frisk of Gibbs turned cocaine. Officer attempted legally Marlock occupied to determine who apartment. Hughes Vanessa volunteered that she legal Hughes was the tenant. Officer Schlei then took explained they aside and that wanted to search the apartment any illegal drugs drug paraphernalia. for point She consented. At some after the officers entered apartment, began, but before the search two back- up squads arrived to assist. During Hughes repeatedly the search, By testimony, "got
taunted the officers. her own she yelling police." According at the to Michael Webb, Hughes running "going was around and off on the police." Hughes argued testified that she with the putting up officers remaining about her hands still. She also refused to sit down when the officers told her to.
¶ 8. apartment, As the officers searched the Hughes repeatedly go told them to ahead and search, they nothing. because would find In fact, the officers marijuana.3 found no However, did find evidence drug activity. garbage, they In found the remains cigar of a blunt, a used tо smoke hollow- ing inserting drug. out the They center and found baggies commonly numerous with cuts, corner used to 3Although the marijuana, officers found no Hughes admit suppression ted at the hearing people were in smoking fact marijuana in apartment 4,1996. her on June They gram illegal drugs. package elec- also found digital scale a white residue on it. tronic a female Marlock summoned 9. Schlei and pat-down search of Kurth, conduct officer, Tina Hughes Hughes. at arrived, was seated When Kurth approached testified that she table. Kurth the kitchen Hughes the search: about you And talked her? Counsel]: -with
[Defense said, here That's when I I’m KURTH: OFFICER And you. right? All that's what —she's to search like, okay. cooperative. And that was it. She did you Did tell that she Counsel]: her [Defense give you to search her? permission have to not *7 I did not that. KURTH: No. do OFFICER people kitchen, ¶ Due to 10. the number Hughes for into one of the Kurth escorted bedrooms began search, Kurth bedroom, In the search. before Hughes any prompting, her skirt lifted and without wearing Hughes pad. stated a that she was and stated lump Kleenex her underwear was that it. removed Hughes however,
¶ tissue, After removed the 11. Hughes' lump underwear, another Kurth noticed lump actu- The second was she removed herself. which bag holding ally plastic corner- individual clear larger containing chunk of crack and one cuts cocaine grams bag contained 5.39 all, In crack cocaine. cocaine. Hughes charged possession of a
¶ 12. (cocaine) deliver with intent substance controlled 161.16(2)(b)l §§ Wis. Stat. under 161.41(lxn)(cm)2.4 Hughes suppress moved to the evi- person being dence seized from her as the fruit of an illegal apartment, alleging search of her that the apartment entered her warrant, without a searched sup- consent, without her and that the search was not ported by probable justified by exigent cause or circumstances.
¶ 13. strong The trial court determined that the marijuana coming apartment gave odor of from the probable officers cause to believe that a crime had been being premises or was committed on the and that there exigent justify were sufficient circumstances to officers' without a warrant. In addition, the court Hughes found that property consented to both the search of her person. August and of her On 22, 1996, Hughes pled guilty charges against to the her. On Octo- prison. 29,1996, ber she was sentenced to 24 months in Hughes appealed. summary disposi- In a appeals tion, finding the court of reversed, Hughes' apartment search of violated her Fourth rights supported by Amendment because it was not burning marijuana, cause, and the odor of exigency, justify without further evidence anof did not entry. the warrantless granting denying 15. Review of an order suppress presents question
motion evidence of con- fact, stitutional which we review under two different *8 uphold findings standards. We a circuit court's of fact clearly unless are erroneous. Secrist, State v. 224 (1999). 201, Wis. 2d 207, 589 N.W.2d 387 We then independently apply the law to those facts de novo.
4 July 9, 1996, Effective both statutes were amended and by 448, renumbered 1995 Wis. Act 245 §§ and 371 to Wis. Stat. 961.16(2)(b)1 961.41(1m)(cm)2, §§ and respectively.
288 475, 569 212 Wis. 2d N.W.2d Kiekhefer, v. State 1997). (Ct. App. 316 presents us a dilemma as old This case gov- the itself: how best to balance
as the constitution with the interest in law enforcement ernment's Although gener- right we to be left alone. individual's give rights ally individual, we to the of the deference rights yield recognize must to the sometimes those duty government's to enforce the law. warrantless into 17. A officer's by prohibited
private presumptively the residence the United States Constitu- Fourth Amendment to I, 11, of the Wisconsin tion,5 and article section the However, this court and United Constitution.6 exceptions recognized Supreme to Court have States States Constitution The Fourth Amendment to United provides: houses, persons, right people
The be secure their seizures, effects, against papers, and unreasonable searches and issue, proba- violatеd, upon and no shall but shall not be Warrants affirmation, cause, particularly supported Oath or ble searched, things describing place persons or to be to be seized. I, iden the Wisconsin Constitution is Article section 11 of and states:
tical in Fourth Amendment substance houses, papers, right people persons their secure in be against shall searches and seizures not be and effects unreasonable cause, upon sup- violated; issue but and no warrant shall describing particularly place ported by or oath affirmation persons things to be seized. to be searched and inter Supreme States Court's This court follows the United provision Fourth pretation the search and seizure provision of the state con construing the same Amendment 153, 171-72, 388 Fry, 2d N.W.2d 565 v. 131 Wis. stitution. State (1986). *9 requirement government
the warrant
where the
can
exigent
probable
both
show
cause and
circumstances
right
that overcome the individual's
to be free from
government
Payton
York,
interference.
Newv.
445 U.S.
(1980);
573, 575,
Smith,
583-88
State v.
131 Wis. 2d
(1986).
220, 228,
in fact two distinct because implicate liberty Secrist, distinct interests. Wis. 2d at 209. probable requirement
¶ 20. Thе cause in protects arrest context an individual's interest in his personal liberty. proper inquiry her Thus, in an challenge arrest is whether cause exists particular suspect believe that a has committed Kiper, crime. 69, 82, State v. 193 Wis. 2d 532 N.W.2d *10 (1995). however, not an arrest but a search This, is 698 case. pri- individual's 21. In the search context the possessions
vacy at home and is in his or her interest proper inquiry is context, In stake. Id. at Secrist, 224 will be of a crime found. whether evidence (citing LaFave, A and Seizure: 2d 209 2 Search Wis. at (3d 3.1(b), § at 7-8 Amendment, Treatise on the Fourth 1996)). required quantum to estab- of evidence ed. probability" probable is a that cause to search "fair lish found in a of a crime be contraband or evidence will particular place. 213, 238 Gates, 462 U.S. Illinois v. (1983). marijuana odor of com 22. The unmistakable
ing Hughes' apartment provided this fair from Many probability. addressed situation cases have upon his her sense of smell relies in which an officer illegal drugs. presence Kiekhefеr, See to detect the of (odor marijuana emanating from 2d at 479 of 212 Wis. probable provided cause officers
bedroom warrant); Brockman, v. 231 Wis. a State obtain search (1939)(distinctive 634, 041-42, 283 338 odor N.W. fermenting sufficient to officers was mash detected finding justi magistrate's support cause warrant); fying Secrist, 224 the issuance of a search ("unmistakable marijuana" odor of ema 2d Wis. at nating provided probable for an officer cause from a car crime the car contained evidence to believe that search). Supreme Court The United States and thus to recognized "[the sub odor of a controlled has also that very stance] might evidence of the well found to be be finding probable persuasive cause to most character" States, United warrant. Johnson v. issue search (1948). 10, 13 U.S. strong marijuana
¶ 23. When smell is in probability" there is a air, "fair present. This is case, common sense. In this the officers building high drug also knew that activity an area of guard security and that two men saw entering apartment not who were welcome at the complex illegal drug activity. because of their In decid ing permissible are whether actions under the Fourth only Amendment, we need determine that the actions of law enforcement were reasonable. Illinois v. Rodri (1990). guez, 497 U.S. 185-86 Under these entirely circumstances, it was reasonable to conclude activity illegal drug probably that evidence of would be Apartment *11 found in 306.
¶ 24. Once cause search has been exigent established, the state must also demonstrate justify entry circumstances to apartment. the warrantless into the objective determining The test for whether exigent police exist officer, circumstances is whether a they under time, the facts as were at the known would reasonably delay procuring believe that in a search gravely endanger would life, warrant risk destruction greatly evidence, of or the enhance likelihood of the suspect's escape. Smith, 131 2d at Wis. 230. recognized In Smith, 25. we four circumstances against which, when measured the time needed to exigent warrant, obtain a constitute the circumstances required entry. for a warrantless at Id. 229. Those cir- (1) (2) pursuit," cumstances are an arrest in made "hot (3) safety suspect others, threat to of a a risk that (4) destroyed, will evidence be a likelihood that the suspect will flee. Id. says
¶26.
factor,
The State
that
the third
the
implicated
risk
evidence,
of destruction of
is
in this
marijuana
agree.
strong
hit
that
odor
case. We
apartment
door to the defendant's
the officers as the
gave
opened
the
to a
that
rise
reasonable belief
being
likely
drug
the
consumed
evidence—was
—the
destroyed.
greater
occupants
consequently
But the
possibility
exigency in
is the
of the intentional
this case
drug by
apart-
organized
destruction of the
they
police
occupants
of the
once
were aware
ment
drugs
Marijuana
presence outside the door.
and other
Hughes
highly
muсh.
has conceded as
are
destructible.
drug possessor
to assume that
It is not unreasonable
waiting
police
knows
are
for a warrant
outside
who
delay
get
rid of the evidence.
use
would
argues
Supreme
Hughes
Court's
27.
requires
us
invalidate
decision
Johnson
permitted
appeal
is not
because a warrantless
burning drugs.
solely
But
we
on
basis of
smell
finding
exigent
on the
circumstances
not base our
do
distinguisha-
alone, and
Johnson
odor
so
important
have
this case an additional and
We
ble.
suspects
present in Johnson: the
factor that was not
police.
fully
presence
In
here were
aware
burning opium
Johnson, the
smelled
while
hallway
standing
outside Johnson's closed
were
their
was unaware of
door;
room
the defendant
hotel
only
presence.
Thus,
risk
Johnson,
333 U.S. at
*12
implicated
that
in Johnson is
of evidence destruction
burning
drug
in order
the
associated
destruc-
it,
than the risk of intentional
rather
consume
discovery
drug
its
the
in order to avoid
tion of
by
police. Id.
Under the circum-
the
at 15.
seizure
apartment occupants had
case,
the
this
stances
destroy
intentionally
every
once
evidence
incentive
present
they
police
Had the
were
knew the
outside.
293
stayed
officers
outside and called for a warrant,
the
very likely
evidence
have
would
been lost.
Kiekhefer,
460,
212 Wis. 2d at
and State v.
(Ct.
1999)
App.
Wilson,
229 Wis. 2d
N.W.2d 14
distinguishable.
are also
In
Kiekhefer,
Johnson,
as
police
marijuana
they
the
detected the odor of
while
standing
were
outside the defendant's closed bedroom
apparently
door; the defendant
his
was in
room
una-
presence
they
ware of their
until
entered without a
upon
warrant. The officers entered the room based
the
any
suggesting
alone,
odor
exigency,
in the absence of
other facts
appeals
and the court of
this
found
insuffi-
justify
cient to
the warrantless
and search.7
appeals
The court of
emphasized
that
the
Kiekhefer
police
they
had the situation "well in hand" at the time
detected
odor,
marijuana
the
that
there was
indication
"no
Kiekhefer
aware
presence,"
was
oftheir
and that
"were not
emanating
confronted with the sounds of destruction
from
within
entry."
Kiekhefer's room so as to excuse the warrantless
(Ct.
Kiekhefer,
460, 477-79,
212 Wis. 2d
App.
It is also
to note that this is not a situation in
exigency
police themselves,
which the
created
which
generally
justify
would
not
a warrantless
search of home. See
Kiekhefer,
lawfully
rationale in the (1984), Wisconsin, 466 U.S. v. sion Welsh enough possession not serious crime entry justify these circum- under a warrantless disagree. drove Welsh, defendant In stances. We Id. road, walked home. off left the scene and his car having police, the defendant's determined at 742. The identity, suspecting intoxicated, that he was placed a warrant and home without entered his The state Id. 742-43. under arrest. at defendant among upon, attempted justify other based immediately entering prevent drug, upon odor begun as soon likely have that would the evidence destruction exigency them- having created the the door. Not as she closed selves, the choice reasonable. latter *14 things, exigency by of the of destruction evidence: the body warrant, time could obtain a Welsh's would destroy alcohol, metabolize the and thus the evidence argued of his intoxication. The defendant that no exi- gent justified entry circumstances the into his home. Supreme agreed The U.S. Court defendant, the holding: government's only
When interest to arrest for offense, a [the minor of presumption unreasonable- entries] ness of warrantless home is difficult to rebut, and the government usually be should only allowed to make such arrests with a warrant upon probable issued a cause neutral magistrate. detached gravity
Id. at 750. The court Welsh held that the important offense is an factor to consider in determin- ing exigent justify whether circumstances will a entry warrantless of a home. Id. The court did not definitively say, categories however, certain that of per insufficiently grave justify offenses are se to a war- entry, only minor, rantless that noncriminal, (first nonjailable traffic violation in that case offense driving) essentially drunk was so.8 Welsh holds that significant significant the less offense, the more Welsh, At time operating first-offense under the (cid:127)influence an punishable by intoxicant was a non-criminal 346.65(2) civil forfeiture not to $200. exceed Wis. Stat. § (1977-78). subsequent years A second or offense within five became a misdemeanor and carried a fine of than no more $500 imprisonment days of not less than five nor than more one year. drawing The Court bright-line refrained from a rule: that, "Because we conclude presented by the circumstances case, exigent there were no jus circumstances sufficient to tify entry, a warrantless home we no have occasion consider whether impose the Fourth may Amendment an absolute ban justify exigent must be in order circumstances entry under Fourth home warrantless Amendment. suggested in a footnote 31. The Welsh court particular penalty attaches to which a state provides indi- "the and most consistent clearest
offense
arresting
individuals
State's interest
cation
suspected
committing
Id. at 754 n.14.
that offense."
only guidance
provides
on
how
This
Welsh's
footnote
purposes of
an offense for
the seriousness of
determine
justify
exigent
evaluating
circumstances
whether
arrest or search. The
of a home for
warrantless
*15
by
adopting
approach
the
the
used
State advocates
Supreme
City
Vegas,
Las
in
v.
North
Court Blanton
of
determining
(1989),
dealt with
tions when single, a of the seriousness in a evaluation of static right charged particular, Sixth Amendment offense for engaged jury purposes. in a Rather, are we trial of of number the seriousness broader evaluation of Welsh, offenses." certain minor home arrests for on warrantless U.S. 750 n.11. at chargeable against potentially offenses, balanced a cer- (here exigency likely tain sort of intentional evidence) purposes determining destruction of for of legality entry search of warrantless under Amendment, Fourth for which the touchstone is always reasonableness. Hughes suggests only
¶ 34. that we look to the punishment possession marijuana for first-offense determine the seriousness the crime at issue in this approach ignores narrow, search. But too proba- both the facts of this case which established the place, legislature's ble cause first and the punish drug graduated election to on a offenses basis, depending upon pos- as a defendant's status mere presumptive sessor or dealer as well as his or her repeater. status as a first time offender or a It also ignores practical facing realities officers the field presented under circumstances such as those here. Particularly drug context, officers are called upon rapid balancing to make decisions the risk of against intentional evidence destruction the serious- may variety potentially chargeable ness of what be a offenses.
¶ 35. At the time case, in this certainty did know not whether were *16 dealing possessors with mere first offense of small marijuana, repeat offenders, amounts of or or those possessed larger who amounts from intent which to they deliver could be inferred. What know, did how- they investigating trespass by ever, was that were persons illegal were who known to be with involved drugs building heavy drug activity, in a known for its strong marijuana present, and that a odor of was estab- lishing probable quantity drug cause some of the present. They people was also knew that once presence, apartment to were alerted their inside destruction likelihood of intentional evidence extremely high.
¶ the circumstances that, under 36. We conclude seriousness of the case, of the this the determination of exigent purposes cir- of Fourth Amendment for offense analysis requires of the an evaluation cumstances type. penalty of for offenses structure overall marijuana- legislature's of of the view seriousness only penalty it reflected not related offenses is possession a small first offense of has established for drug, penalty quantity has estab- it but also possess repeat offenders, and those who for lished larger giving rise the inference that amounts drug possessed deliver. with intent to marijuana possession mis- is a of 37. First-time by up punishable months demeanor, six 961.41(3g)(e). § or A second Stat. incarceration. Wis. by up subsequent felony, рunishable to one offense is a 961.48(2). year prison. § An offender in state Wis. Stat. subject or fine of for a first offense also to a $1000 subsequent Stat. or offense. Wis. for second $2000 961.48(2). offenders, § addition, first-time In even for mandatory suspension provides for Wisconsin law years. privileges operating Wis. for a maximum five § 961.50. Stat. grad- legislature has also established 38. The penalties raises the maximum which
uated scale of drug quantity penalties increases as the Hughes' present. At the time of intent to deliver is possession arrest,9 first-offense grams less or ten or fewer intent to deliver 500 poten- plants $25,000 and the carried a fine of $500 961.41(lm)(h) 31, 1999, Stat. § 9Effective Wis. December provide longer maximum sentences. been amended to has *17 imprisonment up years. tial of for to three Wis. Stat. 961.41(lm)(h)l. penalties § These to a increased fine of up imprisonment $50,000 to for three months to years grams marijuana five for 500 to 2500 or 10 to 961.41(lm)(h)2. plants. possession § 50 Wis. Stat. For any grams quantity to intent deliver over 2500 plants, an offender a fine $100,000 faced to $1000 imprisonment up years. for to ten Wis. Stat. 961.41(lm)(h)3. Repeat penalty § offender enhancers apply possession also to with intent to deliver. For a subsequent potential second or offense, the maximum 961.48(2). § term of incarceration doubles. Wis. Stat. marijuana, ¶ 39. therefore, Possession of even a signifi- first offense and a amount, small is treated cantly seriously more than noncriminal, nonjailable driving first offense drunk violation subjecting range Welsh, involved in penalties, an offender to a including incarceration, fines loss of driving privileges.10 Furthermore, the nature of the (the exigency in this case intentional destruction of evidence) compelling far more immediate and than (the involved Welsh slow metabolization of alco- hol). taking penalty Therefore, the overall structure for marijuana possession consideration, into and evaluat- ing against backdrop very it real and serious complaint allegation this case also containеd the place school, that the took offense within 1000 feet of a requiring impose service, the court community 100 hours of in addition any penalties, other for first-offense simple possession. Wis. possession Stat. 961.495. For § first-offense with intent deliver, potentially up this enhancer adds years to five incarcer 961.49(l)(b)6. ation to a sentence. Wis. Stat. § *18 exigency present conclude Welsh does not here, we that entry.11 require of this warrantless home invalidation entry Having jus- 40. established that was by second issue raised tified, we now turn to the personal Hughes' parties: consent to the whether voluntary police of coer- and not result search was Hughes' court that consent was cion. The trial found finding voluntary. appeals disagreed, The court that of sufficiently Hughes' attenuated from consent was not entry an the court had determined was unlawful. that entry lawful, in this to be We have found case analysis need so the not be undertaken. attenuation upon Hughes' find, words and We further basеd voluntary actions, that her consent was otherwise not coerced. question
¶ 41. The
of whether a defendant volun
tarily
search
is determined
consented
independently by
appropriate
applying the
constitu
by
principles to
as
the trial court.
tional
the facts
found
Phillips,
180, 194-95,
218
577
State v.
2d
N.W.2d
Wis.
(1998).
test
is whether con
The
for voluntariness
given
in the "absence of actual
sent
search
designed
improper police practices
to over
coercive
Clappes,
defendant." State v.
come the resistance of a
(1987).
222,
In mak
136 Wis. 2d
¶ 42. The State has the initial burden to show
voluntary.
that the defendant's consent was
State v.
(Ct. App.
Lee, 175
348, 359,
Wis. 2d
¶ 44. offers almost no evidence of improper police practices. Hughes' primary argument voluntarily is that "merely she did not consent but acquiesced" to what Kurth stated she was there to do. persuaded. Hughes' suggests We are not behavior simply going along. actively she was cooper- not She lifting being ated search, with the her skirt without (as State) perhaps suggested by so, to do directed pre- a calculated effort to take control of the search to discovering vent the officer from the cocaine she knew hiding person. goes she was on her Such behavior beyond acquiescence." "mere Hughes' during
¶ 45. behavior the search also argument contradicts her that she was intimidated acquiescence. By testimony, into tially yelling her own ini- she was police actively disobeying
at the Hughes' boyfriend officers' orders. Michael testi- Webb Hughes "going police fied that was off' on the as apartment. Hughes frightened searched the If into by authority part police, submission show of on the been, as she claims to have it seems she would have likely quietly by actively been more to sit than to diso- bey verbally Hughes' assault them. actions at the speak time of the search louder than her words now. any argument Her behavior contradicts that she felt compelled by to consent to the search. Hughes particular
¶ 46.
asserts that her
charac-
teristics made her vulnerable to coercion. She cites
regularly
determining
factors
considered
courts in
including
age,
voluntariness,
education,
her
emotional
prior experience
police.
state, and
However,
Hughes,
years
at 20
old, was not a minor at
time
Phillips,
the search. See
¶ 47. also that the failure officers' right to inform her that she had the to refuse consent to particularly the search made her vulnerable to invol- untary acquiescence Although in it. this factor
303 voluntary against weighs generally of a determination analysis only in the factor consent, it is not finding involuntariness. of mandate does not (1973). 218, 227 Bustamonte, 412 U.S. v. Schneckloth case, this factor is not circumstances of Under the finding against enough tip significant the balance voluntary consent. of therefore, officers'
¶ hold, 48. We Hughes' apartment entry search for Vanessa into by supported marijuana possession was of evidence by exigent justified circumstances. cause and upon actions, that her words find, based We also per- voluntarily Hughes of her to the search consented Hughes' properly denied Thus, court the circuit son. suppress, the court of the decision of motion to appeals is reversed. appeals
By the court of decision of the Court.—The is reversed. (dissenting). BRADLEY, J. 49. ANN WALSH purport- 1996, 4, officers afternoon of June
In the late barged edly guns into two-bedroom drawn they City apartment because of Milwaukee marijuana. They have, did could but smelled odor Instead, fearful that the not, a search warrant. obtain possession of a first offense evidence entry. might destroyed, made a warrantless be "physical is the chief of the home 50. The wording against Amend- of the Fourth which the evil v. United States Dist. United States ment is directed." (1972). setting is the In no Court, U.S. clearly privacy than when defined more "zone unambiguous physical dimensions bounded *21 Pаyton an individual's home." v. York, New 445 U.S. (1980). Accordingly, 573, 589 warrantless searches and "presumptively seizures inside a home are unreasona- ble." Id. at 586. heightened protection by
¶ 51. The afforded generally requires Fourth Amendment the issuance of magistrate police a warrant a neutral before the may enter the thresholds of our residences. This consti- requirement formality. tutional is not a mere magistrate right privacy neutral decides when our yield must to the need A for intrusion. warrant- entry, negates here, less as the role of the neutral magistrate protections. and circumvents constitutional recognized
¶ 52. This court has
the limited
exceptions
including exigent
searches,
to warrantless
circumstances based on the destruction of evidence.
Kiper,
69,
State v.
89-90,
Wis. 2d
¶ 53. In Wisconsin, Welsh v. 466 U.S. (1984), Supreme explained the United States Court application exigent circumstances exception exclusionary to the rule the context of rarely home entries should be sanctioned where there only cause to believe that a minor offense majority's attempt distinguish has occurred. The precedential importance and dismantle the isWelsh unconvincing. *22 distinguish attempt Welsh, the
¶ In to 54. its acknowledges majority does not stand that Welsh first per types proposition are of offenses that certain the for entry, but minor invalidate a warrantless so as to se minor offense at rule that the for the rather stands Majority justify the search. in that case did not issue majority Op. that the Welsh ¶ observes Then, the at 30. defining precise guidance the on offered scant Court only meaning in a mentioned minоr offense and of a attaching particular penalty to a the that footnote gravity provided indication of the best offense Majority Op. ¶at 31. that offense. ignores ample discus- This 55. observation determining gravity in on the method of
sion Welsh to which In addition to the footnote an offense. Payton points, majority in refers to the Court Welsh felony importance recognition limita- its Welsh, into the home. intrusions tion on warrantless at 750 n.12. 466 U.S. amplifies the defi- further Court Welsh approval by quoting from with
nition of "minor offense" in McDonald v. United Jackson's concurrence Justice (1948): 451, 459-60 States, 335 U.S. necessity afor search
Whether there is a reasonable certainly a warrant waiting to obtain without of the offense upon gravity somewhat depends as the hazards of in as well thought progress to be reach it.... It is to me attempting method of to homes, even private that shocking proposition indiscriminately tenement, may in a be quarters any suspicious police at the discrеtion of invaded that following up offenses engaged officer .When an or threats of it... involve no violence magistrate, he act as his own officer undertakes to byit justify pointing ought position to be some real immediate and serious if consequences he postponed get action to a warrant. added.)
(Emphasis
¶ 57. Welsh also restricts focus on the first-time
particular
knowledge
commission of a
offense absent
suspect
repeat
subject
ais
offender
penalties.
enhanced
n.6,
¶
In
case,
58.
it is
only
probable
the officers
had
cause to believe that the
occupants Hughes's apartment
committing
of
were
a
marijuana possession,
having
first offense of
the State
point during
argument.
conceded that
oral
The crime
for which
cause existed to obtain a search
marijuana possession,
warrant,
the first offense of
felony
involving
neither a
nor
crime
violence or
analysis,
of it.
threats
Pursuant
to the Welsh
"relatively
offense is
minor."
majority sidesteps
¶ 59. The
the breadth of dis-
cussion
the Fourth Amendment case of
Welsh
case,
instead
resorts to Sixth Amendment
Blanton v.
City
(1989),
Vegas,
North Las
ertheless dismisses majority single particular states that it offense. The upon "a instead broader evaluation wishes to embark potentially chargea- of a number of of the seriousness majority Majority Op. ¶at 33. The . . ." ble offenses. authority leap into the examination of cites no for its marijuana- penalty scheme for a host of the entire related offenses. leap represents 61. This unwarranted impor-
majority's precedential effort to dismantle the depict gravity attempt of first- tance of Welsh. Its opaque light by marijuana possession in an exam- time directly ining penalties for other offenses *24 mandatе that the focus be on contravenes Welsh knowledge aggravating circum- first offense absent of range Furthermore, the evaluation of a of stances. ignores completely the State's concession that offenses only probable in had cause to the officers this case being committed. that a first offense was believe majority's Hughes's myopic of 62. The criticism recognize that it is focus on the first offense fails to precisely myopic the United States view that contemplates Supreme when officers do Court Welsh suspect other offenses. 466 not have cause to attempt n.6, at 746 The U.S. 754. to deflect attention possession marijuana from the first of offense an potential penalties of elaborate recitation marijuana for other potential penalty offenses and enhancers controlling precedent. evades simple posses- ¶ 63. The truth is that first-time marijuana period sion of carries a maximum of 961.41(3g)(e). § incarceration of six months. Wis. Stat. parties generally charged concede that it can be as a either criminal misdemeanor or as a civil forfei- may ture. For offenders, first-time a court even conditionally discharge place pro- the defendant on any adjudication guilt. without bation Wis. Stat. 961.47(1). § shortly transpired Indeed, after the events City case,
in this Milwaukee enacted an ordi- decriminalizing possession grams nance of 25 marijuana. less of See of Ordinances, Milwaukee Code (1997). provides 106-38 This 1997 ordinance for a civil penalty appears as forfeiture penalty consistent with the possession quantities for of small other suburbs of Milwaukee and Wisconsin cities.1 appeals,
¶ 65. Before the court of the State even marijuana posses- made a concession first offense citing is a sion minor offense. After to Welsh in its court, initial brief to State then noted that it apparent "concedes that the offense to the in this possession marijuana, case, is 'minor' since the maxi- only jail. penalty mum six Wis. months Stat. (1995-1996)." 961.41(3g)(e) subsequent § The State's e.g., City 11-2-11; City 1See Glendale Ord. Greenfield § 10.161.41(3); City 23.20(6); Madison §Ord. Ord. Menomonee § City 1031(q); 11.01(5); City Falls Ord. Waukesha Ord. § § West 6.02(3). City Allis Ord. §
309 by claiming temper that it this concession endeavor to separate argument made in the context of a was unpersuasive. gauge Allowing
¶ 66. law enforcement officers to by considering severity the entire of an offense range penalty a a related offenses sets scheme for of Any dangerous precedent. in that is a offense included graduated penalties thereby would be ren- scheme would even include the dered serious. This rationale (DWI) driving first while intoxicated at issue offense of impose subsequent Welsh, in a DWI would because potential penalties period stricter and a incarceration year. U.S. at of one 466 explicitly Court, however, 67. The Welsh heightened repeat
rejected
penalties
on
focus
prior
knowledge
offenses without
of the defendant's
or
father
that the
arrests
convictions. Indeed it is
ironic
actually repeat
defendant in
offender
Welsh
yet
required police
presume
specifically
Court
to
knowledge
repeater
first offense without further
his
Hughes
prior
However,
case,
status.
had no
history
yet
majority
criminal
sanctions
presumption
repeater
as
status as well
an intent
majority
marijuana. This
deliver
cannot do.
faithfully
68. Several courts have
adhered
limitations on
entries into the
Welsh
warrantless
Wag
e.g., Holland,
*6-*7;
home. See