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Search and Seizure — Warrantless searches — exigent circumstances

By: WISCONSIN LAW JOURNAL STAFF//November 19, 2014//

Search and Seizure — Warrantless searches — exigent circumstances

By: WISCONSIN LAW JOURNAL STAFF//November 19, 2014//

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Wisconsin Court of Appeals

Criminal

Search and Seizure — Warrantless searches; exigent circumstances

Where officers believed evidence would be destroyed if they did not enter immediately, exigent circumstances were present.

“Parisi cites to our decision in State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 1997), in support of her assertion that no exigent circumstances existed. In that case, after smelling an odor of burning marijuana coming from behind Kiekhefer’s closed bedroom door, officers entered his bedroom unannounced. Id. at 466. Although we concluded that the officers’ entry was unlawful, id. at 480, Kiekhefer is of no assistance to Parisi because there was ‘no indication that Kiekhefer was aware’ of the officers’ presence outside his door. Id. at 477. As our supreme court noted while analyzing Kiekhefer in Hughes, the officers in Kiekhefer ‘entered the room based upon the odor alone, in the absence of any other facts suggesting exigency.’ Hughes, 233 Wis. 2d 280, ¶28. Here, in addition to the smell of burning marijuana, the police had strong reason to believe the previously conversing occupants were aware police were at the door trying to make contact, and after Sell knocked and announced the police presence, he could no longer hear them conversing and no one answered the door. As previously indicated, it is not a far stretch to conclude that those seeking to avoid detection by the police when the smell of marijuana is present would also be likely to destroy the marijuana to prevent that evidence from being discovered. See id., ¶35 (With the smell of marijuana emanating from the apartment, the police ‘knew that once the people inside the apartment were alerted to their presence, the likelihood of intentional evidence destruction was extremely high.’).”

Affirmed.

Recommended for publication in the official reports.

2014AP474-CR State v. Parisi

Dist. II, Winnebago County, Jorgensen, J., Gundrum, J.

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