State v. Hughes, No. 97-1121-CR.

• Court: United States State Supreme Court of Wisconsin
• Citation: 607 N.W.2d 621,233 Wis.2d 280,2000 WI 24
• Docket Number: No. 97-1121-CR.
• Parties: STATE of Wisconsin, Plaintiff-Respondent-Petitioner, v. Vanessa D. HUGHES, Defendant-Appellant.
• Decision Date: 17 March 2000

233 Wis.2d 280
2000 WI 24
607 N.W.2d 621

STATE of Wisconsin, Plaintiff-Respondent-Petitioner,
v.
Vanessa D. HUGHES, Defendant-Appellant

No. 97-1121-CR.

Supreme Court of Wisconsin.

Oral argument October 5, 1999.

Decided March 17, 2000.

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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

233 Wis.2d 283

For the defendant-appellant there was a brief and oral argument by Andrea Taylor Cornwall, assistant state public defender

¶ 1. DIANE S. SYKES, J.

This case involves a warrantless police entry into a home. 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 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

233 Wis.2d 284

Marlock responded to a report of trespassing made by Richard Lucas, a security guard at the Windsor Court Apartments, 1127 North 18th Street. The 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. Upon arriving at Windsor Court, the officers spoke directly with Lucas, who informed them that the 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

233 Wis.2d 285

with both men, and, in fact, had arrested Smith in the past.

¶ 4. The officers went to Apartment 306 to investigate. They knocked on the door. 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 police officers in full uniform standing in the hallway. She tried to slam the door. The officers, now in possession of evidence of illegal activity beyond a mere trespass, and their 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

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¶ 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. Officer Schlei's frisk of Gibbs turned up cocaine. Officer Marlock attempted to determine who legally occupied the apartment. Vanessa Hughes volunteered that she was the legal tenant. Officer Schlei then took Hughes aside and explained that they wanted to search the apartment for any illegal drugs or drug paraphernalia. She consented. At some point after the officers entered the apartment, but before the search began, two backup squads arrived to assist.

¶ 7. During the search, Hughes repeatedly taunted the officers. By her own testimony, she "got to yelling at the police." According to Michael Webb, Hughes was running around and "going off on the police." Hughes testified that she argued with the officers about putting her hands up and remaining still. 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. In fact, the officers found no marijuana.³ However, they did find evidence of drug 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. They found numerous baggies with corner cuts, commonly used to

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package illegal drugs. They also found a gram electronic digital scale with a white residue on it.

¶ 9. Schlei and Marlock summoned a female officer, Tina Kurth, to conduct a pat-down search of Hughes. When Kurth arrived, Hughes was seated at the kitchen 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.

[Defense Counsel]: Did you tell her that she did not have to give you permission to search her?

OFFICER KURTH: No. I did not do that.

¶ 10. Due to the number of people in the kitchen, Kurth escorted Hughes into one of the bedrooms for the search. In the bedroom, before Kurth began the search, and without any prompting, Hughes lifted her skirt and stated that she was wearing a pad. 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 cornercuts containing crack cocaine and one larger chunk of crack cocaine. In all, the bag contained 5.39 grams of cocaine.

¶ 12. Hughes was charged with possession of a controlled substance (cocaine) with intent to deliver under Wis. Stat. §§ 161.16(2)(b)1 and

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161.41(1m)(cm)2.⁴ Hughes 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.

¶ 13. 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. Hughes appealed. In a summary disposition, the court of appeals reversed, finding that the search of Hughes' apartment violated her Fourth Amendment rights because it was not supported by probable cause, and the odor of burning marijuana, without further evidence of an exigency, did not justify the warrantless entry.

[1]

¶ 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 court's findings of fact unless they are clearly erroneous. State v. Secrist, 224 Wis. 2d 201, 207, 589 N.W.2d 387 (1999). We then independently apply the law to those facts de novo.

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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 of the individual, we recognize that sometimes those rights must yield to the government's duty to enforce the law.

[2]

¶ 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

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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, 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. To determine whether the entry was lawful, we must answer 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. The Fourth Amendment requires probable cause to...