State v. Vanessa D. Hughes
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2000 WI 24 SUPREME COURT OF WISCONSIN Case No.: 97-1121-CR Complete Title of Case: State of Wisconsin, Plaintiff-Respondent-Petitioner, v. Vanessa D. Hughes, Defendant-Appellant. ON REVIEW OF A DECISION OF THE COURT OF APPEALS Opinion Filed: Submitted on Briefs: Oral Argument: Source of APPEAL COURT: COUNTY: JUDGE: JUSTICES: Concurred: Dissented: March 17, 2000 October 5, 1999 Circuit Milwaukee Laurence Gram BRADLEY, J., dissents (opinion filed). ABRAHAMSON, C.J., and BABLITCH, J., join dissent. Not Participating: ATTORNEYS: For the plaintiff-respondent-petitioner the cause was argued by Thomas J. Balistreri, assistant attorney general with whom on the briefs was James E. Doyle, attorney general. For the defendant-appellant there was a brief and oral argument by Andrea Taylor Cornwall, assistant state public defender. NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 97-1121-CR STATE OF WISCONSIN : IN SUPREME COURT State of Wisconsin, Plaintiff-Respondent-Petitioner, FILED v. MAR 17, 2000 Vanessa D. Hughes, Cornelia G. Clark Acting Clerk of Supreme Court Madison, WI Defendant-Appellant. REVIEW of a decision of the Court of Appeals. ¶1 DIANE S. SYKES, J. police entry into a home. Reversed. This case involves a warrantless The officers in question were at the threshold of the defendant's apartment about to investigate a complaint of trespassing when the door was unexpectedly opened, and they immediately detected a strong odor of marijuana coming from inside. The officers also deduced a distinct possibility that any evidence of the drug would be destroyed if they did not immediately enter, since the people in the apartment were now alerted to their presence. The question in the case is, under these circumstances, does the combination of the strong odor of marijuana coming from the apartment, and the knowledge on the part of the occupants that the police are standing outside, amount to exigent circumstances justifying the warrantless entry and subsequent search? We hold that it does, and therefore No. 97-1121-CR reverse the court of appeals decision that reversed the circuit court's order upholding this search. ¶2 The relevant facts are as follows.1 Sometime between 4:30 p.m. and 6:00 p.m. on June 4, 1996, City of Milwaukee Police Officers Brad Schlei and Scott Marlock responded to a report of trespassing made by Richard Lucas, a security guard at the Windsor Court Apartments, 1127 North 18th Street. The 1 The facts in this case are disputed. At the suppression hearing the testimony given by the defendant and her family members often conflicted with the testimony given by the officers. The trial court made a finding of credibility, stating: I found [Officer Kurth's] testimony to be extremely credible. This officer, this lady, was telling the truth on the witness stand. I have no doubt about that. That means that some other people weren't telling the truth. It also means that there certainly was a consent to the personal search, simply on Officer Kurth's testimony. I believe that, then in turn, supports the credibility of the other police officers in their testimony. It is the function of the trier of fact, and not this court, to resolve questions as to the weight of testimony and the credibility of witnesses. Estate of Dejmal, 95 Wis. 2d 141, 151, 289 N.W.2d 813 (1980). This principle recognizes the trial court's ability to assess each witness's demeanor and the overall persuasiveness of his or her testimony in a way that an appellate court, relying solely on a written transcript, cannot. Thus, we consider the trial judge to be the ultimate arbiter of the credibility of a witness, Posnanski v. City of West Allis, 61 Wis. 2d 461, 465, 213 N.W.2d 51 (1973), and will uphold a trial court's determination of credibility unless that determination goes against the great weight and clear preponderance of the evidence. State v. Phillips, 218 Wis. 2d 180, 186-87 n.4, 577 N.W.2d 794 (1998). We find no reason here to disturb the trial court's determination of credibility, which resolved factual discrepancies in favor of the officers' account. 2 No. 97-1121-CR officers knew the complex to be an area of heavy drug activity where the police had made many arrests and had conducted sweeps in the past. ¶3 directly Upon arriving with Lucas, at who Windsor Court, the informed them officers that the spoke apartment manager had a standing trespass complaint against Michael Webb, Danny Smith and Marvin Webb, who were not welcome there because of their involvement with illegal drugs and because they had caused trouble at the complex in the past. Lucas reported that he had seen Smith and Michael Webb on the premises and that they had entered Apartment 306, which was later identified as the defendant Vanessa Hughes' apartment. Officer Schlei was familiar with both men, and, in fact, had arrested Smith in the past. ¶4 The officers went They knocked on the door. to Apartment 306 to investigate. Although they could hear loud music and many voices inside the apartment, they received no response. Concerned by the apparent number of people inside the apartment, Officer Schlei decided to call for back up and await its arrival before knocking again. ¶5 As Schlei and Marlock waited in the hallway outside Apartment 306, the door suddenly opened and the officers were immediately confronted with (a) a very strong odor of marijuana coming from the apartment, and (b) a very surprised Veronica Hughes, the defendant's sister, who apparently was on her way to the store and did not expect to see two Milwaukee officers in full uniform standing in the hallway. police She tried to slam the door. The officers, now in possession of evidence of 3 No. illegal activity beyond a mere trespass, their and 97-1121-CR presence having been revealed to those inside the apartment through no action of their own, were faced with a changed situation. Concerned that the people inside would destroy any drug evidence if an immediate entry were not undertaken, the officers prevented Veronica from closing the door and went in.2 ¶6 There was initial chaos in the apartment. Seven or eight people were in the main room and two people began running down the hallway toward the back bedrooms of the apartment. For their safety, the officers ordered the occupants to put their hands up and remain still. All complied except for one Timothy Gibbs, who kept his hands near his pockets. frisk of Gibbs turned up cocaine. Officer Schlei's Officer Marlock attempted to determine who legally occupied the apartment. volunteered that she was the legal tenant. Vanessa Hughes Officer Schlei then took Hughes aside and explained that they wanted to search the apartment consented. apartment, for any illegal At but drugs or some point before the after search drug the paraphernalia. officers began, two She entered back-up the squads arrived to assist. 2 There is also testimony in the record from both Veronica and Vanessa Hughes that Veronica screamed when she saw the police; this, of course, would have very dramatically alerted the occupants of the apartment to the presence of the police and increased the urgent necessity of entry to prevent evidence destruction. However, it is not clear from the record whether Veronica screamed immediately upon seeing the officers or after they entered the apartment, and the trial court never made a finding on the subject. 4 No. ¶7 During officers. police." the search, Hughes the According to Michael Webb, Hughes was running around the still. taunted By her own testimony, she "got to yelling at the and "going off on the police." with repeatedly 97-1121-CR officers about Hughes testified that she argued putting her hands up and remaining She also refused to sit down when the officers told her to. ¶8 As the officers searched the apartment, Hughes repeatedly told them to go ahead and search, because they would find nothing. However, they In did fact, find the officers evidence of found drug no marijuana.3 activity. In the garbage, they found the remains of a blunt, a cigar used to smoke marijuana by hollowing out the center and inserting the drug. used They found numerous baggies with corner cuts, commonly to package illegal drugs. They also found a gram officer, Tina electronic digital scale with a white residue on it. ¶9 Kurth, Schlei to arrived, and conduct Hughes a was Marlock pat-down seated summoned a search of at the female Hughes. kitchen When Kurth table. Kurth testified that she approached Hughes about the search: [Defense Counsel]: And you talked with her? OFFICER KURTH: That's when I said, I'm here to search you. All right? And that's whatshe's like, okay. And that was it. She was cooperative. 3 Although the officers found no marijuana, Hughes admitted at the suppression hearing that people were in fact smoking marijuana in her apartment on June 4, 1996. 5 No. 97-1121-CR [Defense Counsel]: Did you tell her that she did not have to give you permission to search her? OFFICER KURTH: No. ¶10 Due to the I did not do that. number of people in the kitchen, escorted Hughes into one of the bedrooms for the search. bedroom, before prompting, Kurth Hughes wearing a pad. began lifted her the search, skirt and and stated Kurth In the without that any she was Hughes stated that the lump in her underwear was Kleenex and removed it. ¶11 After Hughes removed the tissue, however, Kurth noticed another lump in Hughes' underwear, which she removed herself. The second lump was actually a clear plastic bag holding 22 individual corner-cuts containing crack cocaine and one larger chunk of crack cocaine. In all, the bag contained 5.39 grams of cocaine. ¶12 substance Hughes was (cocaine) §§ 161.16(2)(b)(1) charged with and with intent possession to deliver 161.41(1m)(cm)(2).4 of a under Hughes controlled Wis. Stat. moved to suppress the evidence seized from her person as being the fruit of an illegal search of her apartment, alleging that the police entered her apartment without a warrant, searched without her consent, and that the search was not supported by probable cause or justified by exigent circumstances. 4 Effective July 9, 1996, both statutes were amended and renumbered by 1995 Wis. Act 448, §§ 245 and 371 to Wis. Stat. §§ 961.16(2)(b)(1) and 961.41(1m)(cm)(2), respectively. 6 No. ¶13 97-1121-CR The trial court determined that the strong odor of marijuana coming from the apartment gave the officers probable cause to believe that a crime had been or was being committed on the premises and that there were sufficient exigent circumstances to justify the officers' entry without a warrant. In addition, the court found that Hughes consented to both the search of her property and of her person. On August 22, 1996, Hughes pled guilty to the charges against her. On October 29, 1996, she was sentenced to 24 months in prison. ¶14 of Hughes appealed. appeals reversed, In a summary disposition, the court finding that the search of Hughes' apartment violated her Fourth Amendment rights because it was not supported marijuana, by probable and further evidence of without cause, the an odor of exigency, burning did not justify the warrantless entry. ¶15 Review of an order granting or denying a motion to suppress evidence presents a question of constitutional fact, which we review under two different standards. We uphold a circuit are court's erroneous. of fact unless they clearly State v. Secrist, 224 Wis. 2d 201, 207, 589 N.W.2d 387 (1999). de novo. findings We then independently apply the law to those facts State v. Kiekhefer, 212 Wis. 2d 460, 475, 569 N.W.2d 316 (Ct. App. 1997). ¶16 This case presents us with a dilemma as old as the constitution itself: how best to balance the government's interest in law enforcement with the individual's right to be left alone. Although we generally give deference to the rights 7 No. 97-1121-CR of the individual, we recognize that sometimes those rights must yield to the government's duty to enforce the law. ¶17 A police officer's warrantless entry into a private residence is presumptively prohibited by the Fourth Amendment to the United States Constitution,5 and article I, section 11, of the Wisconsin Constitution.6 However, this court and the United States Supreme Court have recognized exceptions to the warrant requirement where the government can show both probable cause and exigent circumstances that overcome the individual's right to be free from government interference. Payton v. New York, 5 The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 6 Article I, section 11 of the Wisconsin Constitution is identical in substance to the Fourth Amendment and states: The right of the people to be secure in their persons houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized. This court follows the United States Supreme Court's interpretation of the search and seizure provision of the Fourth Amendment in construing the same provision of the state constitution. State v. Fry, 131 Wis. 2d 153, 171-72, 388 N.W.2d 565 (1986). 8 No. 97-1121-CR 445 U.S. 573, 575, 583-88 (1980); State v. Smith, 131 Wis. 2d 220, 228, 388 N.W.2d 601 (1986). We find that the record in this case establishes both, and thus hold that the entry was permissible. ¶18 answer To determine whether the entry was lawful, we must two questions: first, did the officers have probable cause to believe that Hughes' apartment contained evidence of a crime, and second, did exigent circumstances exist at the time of the entry to establish an exception to the warrant requirement? ¶19 support The Fourth Amendment every search or requires seizure in probable order to cause to "safeguard the privacy and security of individuals against arbitrary invasions by government officials." 130, 454 N.W.2d 780 (1990). assuming different State v. DeSmidt, 155 Wis. 2d 119, Probable cause is a fluid concept, requirements depending upon its context. County of Jefferson v. Renz, 231 Wis. 2d 293, 304, 603 N.W.2d 541 (1999). probable This case concerns probable cause to search, not cause to sometimes treated distinct inquiries interests. ¶20 protects liberty. whether arrest. Although interchangeably, because they they the in implicate two concepts are require two fact distinct liberty Secrist, 224 Wis. 2d at 209. The probable cause requirement in the arrest context an individual's interest in his or her personal Thus, the proper inquiry in an arrest challenge is probable cause exists to suspect has committed a crime. believe that a particular State v. Kiper, 193 Wis. 2d 69, 9 No. 82, 532 N.W.2d 698 (1995). 97-1121-CR This, however, is not an arrest but a search case. ¶21 In the search context the individual's privacy interest in his or her home and possessions is at stake. 83. Id. at In this context, the proper inquiry is whether evidence of a crime will be found. Secrist, 224 Wis. 2d at 209 (citing 2 LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 3.1(b), required at to 7-8 (3rd establish probability" that ed. 1996)). probable contraband The quantum of evidence to search is a cause or evidence of a crime "fair will be Illinois v. Gates, 462 U.S. 213, found in a particular place. 238 (1983). ¶22 apartment The unmistakable odor of marijuana coming from Hughes' provided this fair probability. Many cases have addressed the situation in which an officer relies upon his or her sense of smell to detect the presence of illegal drugs. See Kiekhefer, 212 Wis. 2d at 479 (odor of marijuana emanating from bedroom provided officers with probable cause to obtain a search warrant); State v. Brockman, 231 Wis. 634, 641-42, 283 N.W. 338 (1939)(distinctive odor of fermenting mash detected by officers was sufficient to support a magistrate's finding of probable cause justifying the issuance of a search warrant); Secrist, 224 Wis. 2d at 210 ("unmistakable odor of marijuana" emanating from a car provided probable cause for an officer to believe that the car contained evidence of a crime and thus to search). The United States Supreme Court has also recognized that "[the odor of a controlled substance] might 10 very well be found to be No. 97-1121-CR evidence of the most persuasive character" in finding probable cause to issue a search warrant. Johnson v. United States, 333 U.S. 10, 13 (1948). ¶23 When the strong smell of marijuana is in the there is a "fair probability" that marijuana is present. is common sense. air, This In this case, the officers also knew that the building was an area of high drug activity and that the security guard saw two men entering the apartment who were not welcome at the complex because of their illegal drug activity. In deciding whether actions are permissible under the Fourth Amendment, we need only determine that the actions of law enforcement were reasonable. Under Illinois v. Rodriguez, 497 U.S. 177, 185-86 (1990). these circumstances, it was entirely reasonable to conclude that evidence of illegal drug activity would probably be found in Apartment 306. ¶24 Once probable cause to search has been established, the state must also demonstrate exigent circumstances to justify the warrantless entry into the apartment. The objective test for determining whether exigent circumstances exist is whether a police officer, under the facts as they were known at the time, would reasonably warrant would believe gravely that delay endanger in life, procuring risk a search destruction of evidence, or greatly enhance the likelihood of the suspect's escape. ¶25 Smith, 131 Wis. 2d at 230. In Smith, we recognized four circumstances which, when measured against the time needed to obtain a warrant, constitute the exigent circumstances required for a warrantless entry. 11 Id. No. at 229. 97-1121-CR Those circumstances are (1) an arrest made in "hot pursuit," (2) a threat to safety of a suspect or others, (3) a risk that evidence will be destroyed, and (4) a likelihood that the suspect will flee. ¶26 Id. The State says that the third factor, the destruction of evidence, is implicated in this case. risk of We agree. The strong odor of marijuana that hit the officers as the door to the defendant's apartment was opened gave rise to a reasonable belief that the drugthe evidencewas likely being consumed by the occupants and consequently destroyed. But the greater of the by the exigency intentional in and this case organized is the destruction possibility of the drug apartment occupants once they were aware of the police presence outside the door. destructible. unreasonable Marijuana Hughes has assume that to and conceded a drug other as drugs are much. It possessor who highly is not knows the police are outside waiting for a warrant would use the delay to get rid of the evidence. ¶27 Johnson Hughes argues requires us that to the Supreme invalidate Court's this decision appeal in because a warrantless entry is not permitted solely on the basis of the smell of burning drugs. But we do not base our finding of exigent the circumstances on marijuana odor alone, and so Johnson is distinguishable. We have in this case an additional and was important factor that not present in Johnson: the suspects here were fully aware of the presence of the police. In Johnson, the police smelled burning opium while they were 12 No. standing in the hallway outside Johnson's closed door; the defendant was unaware of their presence. U.S. at 12. Thus, the only risk of 97-1121-CR hotel room Johnson, 333 evidence destruction implicated in Johnson is that associated with the burning of the drug in order to consume it, rather than the risk of intentional destruction of the drug in order to avoid its discovery and seizure by the police. this case, the Id. at 15. apartment Under the circumstances of occupants had every incentive to intentionally destroy evidence once they knew the police were present outside. Had the officers stayed outside and called for a warrant, the evidence very likely would have been lost. ¶28 229 Kiekhefer, 212 Wis. 2d at 460, and State v. Wilson, Wis. 2d 256, distinguishable. 600 In N.W.2d 14 Kiekhefer, (Ct. as in App. 1999) Johnson, are the also police detected the odor of marijuana while they were standing outside the defendant's closed bedroom door; the defendant was in his room apparently unaware of their presence until they entered without a warrant. odor alone, in The officers entered the room based upon the the absence of 13 any other facts suggesting No. 97-1121-CR exigency, and the court of appeals found this insufficient to justify the warrantless entry and search.7 ¶29 Wilson presents a different situation entirely. In Wilson, a police officer went to the defendant's home looking for a juvenile for whom he had an arrest warrant. Wis. 2d at 260. Wilson, 229 The officer walked around to the backyard of the home, where he encountered one of the defendant's children. He followed the child to the back door of the house and entered the doorway, at which point he observed smoke and smelled the odor of marijuana coming from the basement. Id. at 260-61. The 7 The court of appeals in Kiekhefer emphasized that the police had the situation well in hand at the time they detected the marijuana odor, that there was no indication that Kiekhefer was aware of their presence, and that they were not confronted with the sounds of destruction emanating from within Kiekhefer's room so as to excuse the warrantless entry. Kiekhefer, 212 Wis. 2d 460, 477-79, 569 N.W.2d 316 (Ct. App. 1997). This differs significantly from this case. Here, the presence of the police was unexpectedly revealed to the people in the apartment when Veronica Hughes opened the door; that she rapidly tried to shut it again when she saw them standing there in full uniform was reasonably interpreted by the officers as representing a consciousness of the illegal activity going on inside and a concomitant desire to avoid its discovery by the police. It is also important to note that this is not a situation in which the exigency was created by the police themselves, which would generally not justify a warrantless search of a home. See Kiekhefer, 212 Wis. 2d at 476. The police were lawfully in the hallway waiting for backup before investigating a trespass complaint. They did not detect the marijuana odor until Veronica Hughes unexpectedly opened the door. They were faced with the choice of remaining outside and calling for a warrant based upon the odor of the drug, or immediately entering to prevent the evidence destruction that would likely have begun as soon as she closed the door. Not having created the exigency themselves, the latter choice was reasonable. 14 No. 97-1121-CR court of appeals found a Fourth Amendment violation based upon its conclusion that the officer was unlawfully inside the curtilage of Wilson's home when he smelled the marijuana; in other words, he should not have been in a position to smell the marijuana in the first place. Id. at 266. In this case, however, the officers were entitled to be in the public hallway outside Hughes' apartment and to approach her door in order to investigate the trespass complaint. ¶30 the Hughes also argues that pursuant to the rationale in United Wisconsin, States 466 U.S. Supreme 740 Court's (1984), decision crime the in possession of Welsh v. of marijuana is not serious enough to justify a warrantless entry under these circumstances. We disagree. In Welsh, the defendant drove his car off the road, left the scene and walked home. Id. at 742. The police, having determined the defendant's identity, and suspecting that he was intoxicated, entered his home under arrest. the entry destruction without a warrant Id. at 742-43. based upon, among of evidence: by and placed the defendant The state attempted to justify other the things, time they the exigency could obtain of a warrant, Welsh's body would metabolize the alcohol, and thus destroy the evidence of his intoxication. The defendant argued that no exigent circumstances justified the entry into his home. The U.S. Supreme Court agreed with the defendant, holding: When the government's interest is only to arrest for a minor offense, [the presumption of unreasonableness of warrantless home entries] is difficult to rebut, and the government usually should be allowed to make such 15 No. 97-1121-CR arrests only with a warrant issued upon probable cause by a neutral and detached magistrate. Id. at 750. offense is The Welsh an court important held factor that to the consider gravity in of the determining whether exigent circumstances will justify a warrantless entry of a home. Id. The court did not definitively say, however, that certain categories of offenses are per se insufficiently grave to justify a warrantless entry, only that the minor, noncriminal, nonjailable traffic violation in that case (first offense drunk driving) was so.8 Welsh essentially holds that the less significant the offense, the more significant the exigent circumstances must be in order to justify a warrantless home entry under the Fourth Amendment. ¶31 The Welsh court suggested in a footnote that the penalty which a state attaches to a particular offense provides "the clearest and most consistent indication of the State's interest in arresting individuals suspected of committing that offense." Id. at 754 n.14. This footnote provides Welsh's only 8 At the time of Welsh, first-offense operating under the influence of an intoxicant was punishable by a non-criminal civil forfeiture not to exceed $200. Wis. Stat. § 346.65(2)(1977-78). A second or subsequent offense within five years became a misdemeanor and carried a fine of no more than $500 and imprisonment of not less than five days nor more than one year. The Court refrained from drawing a bright-line rule: Because we conclude that, in the circumstances presented by this case, there were no exigent circumstances sufficient to justify a warrantless home entry, we have no occasion to consider whether the Fourth Amendment may impose an absolute ban on warrantless home arrests for certain minor offenses. Welsh, 466 U.S. at 750 n.11. 16 No. 97-1121-CR guidance on how to determine the seriousness of an offense for purposes of evaluating whether exigent circumstances justify a warrantless entry of a home for arrest or search. The State advocates adopting the approach used by the Supreme Court in Blanton v. City of North Las Vegas, 489 U.S. 538 (1989), which dealt with determining whether an offense is petty or serious for purposes of the Sixth Amendment right to a jury trial. As in Welsh, Blanton looked to the legislature as the best judge of the seriousness of a particular offense. ¶32 Sixth Id. at 541. Blanton held that the seriousness of an offense for Amendment purposes should be objectively determined looking to the maximum penalties fixed by the legislature. by Id. The primary focus is on the maximum potential incarceration (under Blanton, an offense with a six-month maximum is presumed to be petty); relevant. ¶33 applied however, other statutory penalties are also Id. at 542-43. This approach to the analysis has its limitations when in this context. We are not engaged in a static evaluation of the seriousness of a single, particular, charged offense for Sixth Rather, we are seriousness of Amendment engaged a number in of right a to broader potentially jury trial evaluation chargeable purposes. of the offenses, balanced against a certain sort of exigency (here the likely intentional destruction of evidence) for purposes of determining the legality of a warrantless entry and search under the Fourth Amendment, for which the touchstone is always reasonableness. 17 No. ¶34 for 97-1121-CR Hughes suggests that we look only to the punishment first-offense possession of marijuana to determine seriousness of the crime at issue in this search. the But this approach is too narrow, and ignores both the facts of this case which established the probable cause in the first place, and the legislature's election to punish drug offenses on a graduated basis, depending upon the defendant's status as a mere possessor or presumptive dealer as well as his or her status as a first time offender or a repeater. It also ignores the practical realities facing officers in the field under circumstances such as those presented here. Particularly in the drug context, officers are called upon to make rapid decisions balancing the risk of intentional evidence destruction against the seriousness of what may be a variety of potentially chargeable offenses. ¶35 not At the time of the entry in this case, the police did know with first offense certainty whether they possessors of small were dealing amounts of with mere marijuana, or repeat offenders, or those who possessed larger amounts from which intent to deliver could be inferred. What they did know, however, was that they were investigating a trespass by persons who were known to be involved with illegal drugs in a building known for its heavy drug activity, and that a strong odor of marijuana was present, establishing quantity of the drug was present. probable cause that some They also knew that once the people inside the apartment were alerted to their presence, the likelihood of intentional evidence high. 18 destruction was extremely No. ¶36 We conclude that, under the 97-1121-CR circumstances of this case, the determination of the seriousness of the offense for purposes of Fourth requires an evaluation offenses of this Amendment of exigent the type. circumstances overall The penalty analysis structure view legislature's for the of seriousness of marijuana-related offenses is reflected not only in the penalty it has established for first offense possession of a small quantity of the drug, but also the penalty it has established for repeat offenders, and those who possess larger amounts giving rise to the inference that they possessed the drug with intent to deliver. ¶37 First-time possession of marijuana is a misdemeanor, punishable by up to six months incarceration. Wis. Stat. § 961.41(3g)(e). A second or subsequent offense is a felony, punishable to by § 961.48(2). up one year in state prison. Wis. Stat. An offender is also subject to a fine of $1000 for a first offense or $2000 for a second or subsequent offense. Wis. Stat. § 961.48(2). In addition, even for first-time offenders, Wisconsin law provides for mandatory suspension of operating privileges for a maximum of five years. Wis. Stat. § 961.50. ¶38 The legislature has also established a graduated scale of penalties which raises the maximum penalties as the quantity of the drug increases and intent to deliver is present. At the time of Hughes' arrest,9 first-offense possession of marijuana 9 Effective December 31, 1999, Wis. Stat. § 961.41(1m)(h) has been amended to provide longer maximum sentences. 19 No. 97-1121-CR with intent to deliver 500 grams or less or ten or fewer plants carried a fine imprisonment of for § 961.41(1m)(h)(1). $500 up to $25,000 to three and the potential years. Wis. of Stat. These penalties increased to a fine of up to $50,000 and imprisonment for three months to five years for 500 to 2500 grams of marijuana or 10 to 50 plants. § 961.41(1m)(h)(2). Wis. Stat. For possession with intent to deliver any quantity over 2500 grams or 50 plants, an offender faced a fine of $1000 to $100,000 and imprisonment for up to ten years. Stat. § 961.41(1m)(h)(3). Repeat offender penalty also apply to possession with intent to deliver. or subsequent offense, incarceration doubles. ¶39 offense Possession and a small the maximum Wis. enhancers For a second potential term of Wis. Stat. § 961.48(2). of marijuana, amount, is therefore, treated even a significantly first more seriously than the noncriminal, nonjailable first offense drunk driving violation involved in Welsh, subjecting an offender to a range of penalties, including incarceration, fines and loss of driving privileges.10 Furthermore, the nature of the exigency in this case (the intentional destruction of evidence) is far more immediate and compelling than that involved in Welsh (the slow 10 The complaint in this case also contained the allegation that the offense took place within 1000 feet of a school, requiring the court to impose 100 hours of community service, in addition to any other penalties, for first-offense simple possession. Wis. Stat. § 961.495. For first-offense possession with intent to deliver, this enhancer potentially adds up to five years incarceration to a sentence. Wis. Stat. § 961.49(1)(b)(6). 20 No. metabolization of alcohol). Therefore, taking the 97-1121-CR overall penalty structure for marijuana possession into consideration, and evaluating it against the backdrop of the very real and serious exigency present here, we conclude that Welsh does not require invalidation of this warrantless home entry.11 ¶40 Having established that the entry was justified, we now turn to the second issue raised by the parties: whether Hughes' consent to the personal search was voluntary and not the result of police coercion. consent was voluntary. The trial court found that Hughes' The court of appeals disagreed, finding that Hughes' consent was not sufficiently attenuated from an entry that the court had determined was unlawful. We have found the entry in this case to be lawful, and so the attenuation analysis need not be undertaken. Hughes' words and actions, We further find, based upon that her consent was otherwise voluntary and not coerced. ¶41 The question of whether a defendant voluntarily consented to a search is determined independently by applying the appropriate constitutional principles to the facts as found by the trial court. State v. Phillips, 218 Wis. 2d 180, 194-95, 577 N.W.2d 794 (1998). The test for voluntariness is whether 11 The State makes an alternative argument in defense of this entry: that the police may enter a residence without a warrant to arrest for a misdemeanor when they have probable cause to believe that the crime is being committed in their presence by persons inside. We have upheld this entry and search based upon the presence of probable cause and exigent circumstances involving the risk of evidence destruction. We do not, therefore, reach the State's alternative argument. 21 No. 97-1121-CR consent to search was given in the "absence of actual coercive improper police practices designed to overcome the resistance of a defendant." N.W.2d 759 State v. (1987). In factor is dispositive. we examine the Clappes, making 136 this Wis. 2d 222, determination, 245, no Phillips, 218 Wis. 2d at 198. totality of the circumstances, with 401 single Instead, special emphasis placed on the circumstances surrounding the consent and the characteristics of the defendant. ¶42 The State has the Id. initial defendant's consent was voluntary. burden to show that the State v. Lee, 175 Wis. 2d 348, 359, 499 N.W.2d 250 (Ct. App. 1993). Once the State has shown that the defendant gave consent, was willing to give it, and that he or she did not give it as a result of duress, threats, coercion or promises, the burden shifts to the defendant to show that the police used improper means to obtain his or her consent. State v. Nicholson, 187 Wis. 2d 688, 696, 523 N.W.2d 573 (Ct. App. 1994). ¶43 The State has presented evidence that the defendant not only verbally consented to the search of her person, but also affirmatively search. being assisted the police in performing that Officer Kurth, whom the trial court singled out as "especially credible," consented to the search. testified that Hughes verbally The evidence also established that without any prompting, Hughes lifted her skirt and essentially revealed the drugs concealed in her underwear before Kurth even began the pat-down. 22 No. ¶44 97-1121-CR Hughes offers almost no evidence of improper police practices. Hughes' primary argument is that she did not voluntarily consent but "merely acquiesced" to what Kurth stated she was there to do. We are not persuaded. Hughes' behavior suggests that she was not simply going along. cooperated with the search, lifting her She actively skirt without being directed to do so, perhaps (as suggested by the State) in a calculated effort to take control of the search to prevent the officer from discovering the cocaine she knew she was hiding on her person. ¶45 Such behavior goes beyond "mere acquiescence." Hughes' behavior during the search also contradicts her argument that she was intimidated into acquiescence. own testimony, actively she was initially yelling disobeying the officers' at orders. the By her police Hughes' and boyfriend Michael Webb testified that Hughes was "going off" on the police as they searched the apartment. If Hughes was frightened into submission by a show of authority on the part of police, as she claims to have been, it seems she would have been more likely to sit quietly by than to actively disobey and verbally assault them. Hughes' actions at the time of the search speak louder than her words now. Her behavior contradicts any argument that she felt compelled by the police to consent to the search. ¶46 Hughes asserts that her made her vulnerable to coercion. particular characteristics She cites factors regularly considered by courts in determining voluntariness, including her age, education, police. emotional state, and prior experience with However, Hughes, at 20 years old, was not a minor at 23 No. the time of the search. 97-1121-CR See Phillips, 218 Wis. 2d at 202. She had completed the eleventh grade, and has presented no evidence of below average intelligence or abilities. See id. Although Hughes herself had no prior record, she had lived for over a year in a building that was often the subject of drug sweeps by the Milwaukee Police Department. She completely unfamiliar with the police. could not have been We are not persuaded that Hughes was unusually susceptible to coercion. ¶47 Hughes also argues that the officers' failure to inform her that she had the right to refuse consent to the search made acquiescence her in particularly it. Although vulnerable this factor to involuntary generally weighs against a determination of voluntary consent, it is not the only factor in the analysis involuntariness. (1973). and does not mandate a finding of Schneckloth v. Bustamonte, 412 U.S. 218, 227 Under the circumstances of this case, this factor is not significant enough to tip the balance against a finding of voluntary consent. ¶48 into We hold, therefore, that the police officers' entry Vanessa marijuana Hughes' possession apartment was to supported justified by exigent circumstances. search by for probable evidence of cause and We also find, based upon her words and actions, that Hughes voluntarily consented to the search of her person. Thus, the circuit court properly denied Hughes' motion to suppress, and the decision of the court of appeals is reversed. 24 No. By the Court. The decision reversed. 25 of the court of 97-1121-CR appeals is 97-1121.awb ¶49 ANN WALSH BRADLEY, J. In the late (dissenting). afternoon of June 4, 1996, officers purportedly with guns drawn barged into a two-bedroom apartment in the City of Milwaukee because they smelled the odor of marijuana. but did not, obtain a search warrant. They could have, Instead, fearful that the evidence of a first offense possession of marijuana might be destroyed, they made a warrantless entry. ¶50 The physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed. United States v. United States Dist. Court, 407 U.S. 297, 313 (1972). In no setting is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual s home. (1980). Payton v. New York, 445 U.S. 573, 589 Accordingly, warrantless searches and seizures inside a home are presumptively unreasonable. ¶51 The Amendment heightened protection generally requires Id. at 586. afforded the issuance of by a the Fourth warrant by a neutral magistrate before the police may enter the thresholds of our residences. formality. privacy The neutral magistrate decides when our right to must warrantless This constitutional requirement is not a mere yield to entry, as the here, police need for negates the role intrusion. of the magistrate and circumvents constitutional protections. 1 A neutral 97-1121.awb ¶52 This court has recognized the limited exceptions to warrantless searches, including exigent circumstances based on the destruction of evidence. State v. Kiper, 193 Wis. 2d 69, 89-90, 532 N.W.2d 698 (1995). validation of circumstances the facts threatens to Unfortunately, the majority s of the swallow present the rule restraint embodied in the Fourth Amendment. marijuana upon which the officers case by as exigent relaxing the The destruction of justified their search of Hughes s home does not rise to the level of exigency required to rebut the presumption of the search s unreasonableness. ¶53 In Welsh v. Wisconsin, 466 U.S. 740, 753 (1984), the United States Supreme Court explained that the application of the exigent circumstances exception to the exclusionary rule in the context of home entries should rarely be sanctioned where there is probable cause to believe that only a minor offense has occurred. The majority s attempt to distinguish and dismantle the precedential importance of Welsh is unconvincing. ¶54 In its attempt to distinguish Welsh, the majority first acknowledges that Welsh does not stand for the proposition that certain types of offenses are per se minor so as to invalidate a warrantless entry, but rather stands for the rule that the minor offense at issue in that case did not justify the search. Majority Op. at ¶30. Then, the majority observes that the Welsh Court offered scant guidance on defining the precise 2 97-1121.awb meaning of a minor offense and only mentioned in a footnote that the penalty attaching to a particular offense provided the best indication of the gravity of that offense. ¶55 Majority Op. at ¶31. This observation ignores the ample discussion in Welsh on the method of determining the gravity of an offense. In addition to the footnote to which the majority points, the Court in Welsh refers to Payton and its recognition of the importance of a felony limitation on warrantless intrusions into the home. Welsh, 466 U.S. at 750 n.12. ¶56 The Welsh Court further amplifies the definition of minor offense by quoting with approval from Justice Jackson s concurrence in McDonald v. United States, 335 U.S. 451, 459-60 (1948): Whether there is a reasonable necessity for a search without waiting to obtain a warrant certainly depends somewhat upon the gravity of the offense thought to be in progress as well as the hazards of the method of attempting to reach it . . . . It is to me a shocking proposition that private homes, even quarters in a tenement, may be indiscriminately invaded at the discretion of any suspicious police officer engaged in following up offenses that involve no violence or threats of it. . . . When an officer undertakes to act as his own magistrate, he ought to be in a position to justify it by pointing to some real immediate and serious consequences if he postponed action to get a warrant. (emphasis added). ¶57 Welsh also restricts focus on the first-time commission of a particular offense absent knowledge that the 3 97-1121.awb suspect is a repeat offender subject to enhanced penalties. U.S. at 746 n.6, 754. 466 Consistent with Welsh, other courts have also evaluated exigency by focusing on first offense or simple marijuana possession when probable circumstances has not been present. cause of aggravating See e.g., State v. Holland, 2000 WL 92231, *6 (N.J. Super. App. Div. Jan. 26, 2000); State v. Wagoner, 966 P.2d 176, 182 (N.M. Ct. App. 1998). Contrary to the majority s conclusion, the United States Supreme Court in Welsh provides sufficient direction in determining what constitutes a minor offense. ¶58 In the present case, it is undisputed that the officers only had probable cause to believe that the occupants of Hughes s marijuana apartment possession, during oral existed to were the argument. obtain a committing State The search having crime for warrant, a first conceded which the offense of that point probable cause first offense of marijuana possession, is neither a felony nor a crime involving violence or threats of it. Pursuant to the Welsh analysis, the offense is relatively minor. ¶59 The majority sidesteps the breadth of discussion in the Fourth Amendment case of Welsh and instead resorts to a Sixth Amendment case, Blanton v. City of North Las Vegas, 489 U.S. 538 (1989), for instruction on determining the gravity of marijuana possession in the Fourth 4 Amendment context. In 97-1121.awb Blanton, the Court noted that although the penalty for an offense may include a fine and probation, primary emphasis in the determination of the gravity of the offense should be placed on the maximum potential incarceration. Id. at 542. That is because a fine or probation cannot approximate in severity the loss of liberty that a prison term entails. Id. Indeed, the Blanton Court concluded that a $1,000 fine and the revocation of driving privileges, in addition to six months incarceration, did not transform the petty offense of driving under the influence of alcohol into a serious one. ¶60 Having invoked Id. at 544-45. Blanton, the majority nevertheless dismisses the case because of its focus on a particular single offense. The majority states that it wishes to embark instead upon a broader evaluation of the seriousness of a number of potentially chargeable offenses . . . . Majority Op. at ¶33. The its majority examination of cites the no authority entire penalty for scheme leap for into a host the of marijuana-related offenses. ¶61 This unwarranted leap represents the majority s effort to dismantle the precedential importance of Welsh. Its attempt to depict the gravity of first-time marijuana possession in an opaque light by examining penalties for other marijuana offenses directly contravenes the Welsh mandate that the focus be on a first offense absent knowledge 5 of aggravating circumstances. 97-1121.awb Furthermore, the evaluation of a range of offenses completely ignores the State s concession that the officers in this case only had probable cause to believe that a first offense was being committed. ¶62 The majority s criticism of Hughes s myopic focus on the first offense fails to recognize that it is precisely this myopic view that the United States Supreme Court in Welsh contemplates when officers do not have probable cause to suspect other offenses. 466 U.S. at 746 n.6, 754. The attempt to deflect attention from the first offense of marijuana possession by an elaborate marijuana recitation offenses and of potential potential penalties penalty for enhancers other evades controlling precedent. ¶63 marijuana months. The simple carries a truth is maximum that period Wis. Stat. § 961.41(3g)(e). first-time of possession incarceration of of six The parties concede that generally it can be charged either as a criminal misdemeanor or as a civil forfeiture. even conditionally probation without For first-time offenders, a court may discharge any and adjudication place of the guilt. defendant Wis. on Stat. § 961.47(1). ¶64 Indeed, shortly after the events transpired in this case, the City of Milwaukee enacted an ordinance decriminalizing the possession of 25 grams or less of marijuana. 6 See Milwaukee 97-1121.awb Code of Ordinances, 106-38 (1997). This 1997 ordinance provides for a civil forfeiture as penalty and appears consistent with the penalty for possession of small quantities of marijuana in the suburbs of Milwaukee and other Wisconsin cities.12 ¶65 Before the court of appeals, the State even made a concession that first offense marijuana possession is a minor offense. After citing to Welsh in its initial brief to the court, the State then noted that it concedes that the offense apparent to the police in this case, possession of marijuana, is minor since the maximum penalty is only six months in jail. Wis. Stat. § 961.41(3g)(e) (1995-1996). The State s subsequent endeavor to temper this concession by claiming that it was made in the context of a separate argument is unpersuasive. ¶66 Allowing law enforcement officers to gauge the severity of an offense by considering the entire penalty scheme for a range of related offenses sets a dangerous precedent. offense that is included in a scheme would thereby be rendered serious. of graduated Any penalties This rationale would even include the first offense of driving while intoxicated (DWI) at issue in Welsh, because a subsequent DWI would impose stricter 12 See e.g., Glendale City Ord. § 11-2-11; Greenfield City Ord. § 10.161.41(3); Madison City Ord. § 23.20(6); Menomonee Falls City Ord. § 1031(q); Waukesha City Ord. § 11.01(5); West Allis City Ord. § 6.02(3). 7 97-1121.awb penalties and a potential incarceration period of one year. 466 U.S. at 746. ¶67 The Welsh Court, however, explicitly rejected a focus on heightened penalties and repeat offenses without knowledge of the defendant s prior arrests or convictions. Indeed it is rather ironic that the defendant in Welsh was actually a repeat offender presume and a yet first repeater status. the Court offense specifically without required further police knowledge of to his However, in this case, Hughes had no prior criminal history and yet the majority sanctions the presumption of repeater status as well as an intent to deliver marijuana. This the majority cannot do. ¶68 Several courts have faithfully adhered to the Welsh limitations on warrantless entries into the home. See e.g., Holland, 2000 WL 92231 at *6-*7; Wagoner, 966 P.2d at 182; State v. Ramirez, 746 P.2d 344, 347 (Wash. Ct. App. 1987); State v. Curl, 869 P.2d 224, 226-27 (Idaho 1993). encountered difficulty in applying These courts have not Welsh to invalidate warrantless searches based on the destruction of evidence of first offense or simple marijuana possession. Furthermore, they have done so without resort to an examination of the entire penalty scheme for marijuana possession or the intent to deliver marijuana. 8 97-1121.awb ¶69 In recognizing the first offense of drunk driving at issue in Welsh as relatively minor, the United States Supreme Court was addressing the legal, not societal, consequences of the offense. Likewise, recognizing first offense marijuana possession as minor addresses the legal status of that offense. ¶70 blights Both on drunk driving and our communities. illegal Yet, the drug United use represent States Supreme Court has refrained from allowing moral judgments to obscure the legal reality that in the battle against drunk driving, some violations lie on the lower end of the spectrum of gravity. The same is true for the war on drugs. The Court has mandated that only exigent circumstances in serious offenses excuse a warrantless entry in the home. ¶71 Consistent with the United States Supreme Court directive, the majority should be unwilling to sacrifice the sanctity of the home and be wary of so easily diluting our constitutionally guaranteed freedom from warrantless entry. Today s decision relaxes without justification the protections of the Fourth Amendment and allows exigent circumstances to be the rule rather than the exception. aside controlling precedent and infirm search, I dissent. 9 Because the majority casts upholds a constitutionally 97-1121.awb ¶72 I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON and JUSTICE WILLIAM A. BABLITCH join this dissenting opinion. 10
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