By: WISCONSIN LAW JOURNAL STAFF//March 11, 2014//
U.S. Court of Appeals for the Seventh Circuit
Civil
Civil Rights — qualified immunity
In 2010, the law was not clearly established that the odor of burning marijuana was not an exigent circumstance, so officers who entered a home without a warrant were entitled to qualified immunity.
“The district court was right—federal and state courts have been all over the map on this issue. Compare United States v. McMillion, 472 F. App’x 138, 141 (3d Cir. 2012) (smell of burning marijuana provided an exigency); United States v. Grissett, 925 F.2d 776, 778 (4th Cir. 1991) (same); State v. Rodriguez, 945 A.2d 676, 678–79 (N.H. 2008) (same); Rideout v. State, 122 P.3d 201, 208 (Wy. 2005) (same); Mendez v. People, 986 P.2d 275, 282 (Colo. 1999) (same); State v. Hughes, 607 N.W.2d 621, 628 (Wis. 2000) (same); State v. Decker, 580 P.2d 333, 336 (Ariz. 1978) (same), with Howe v. State, 916 P.2d 153, 160 (Nev. 1996) (smell of burning marijuana did not give rise to an exigency); State v. Ackerman, 499 N.W.2d 882, 886–87 (N.D. 1993) (same); State v. Dorson, 615 P.2d 740, 746 (Haw. 1980) (same); State v. Schur, 538 P.2d 689, 694 (Kan. 1975) (same). Adding to the confusion, many of the courts that have dealt with this issue have been willing to consider the smell of burning marijuana only as part of a totality of the circumstances inquiry in deciding whether an exigency exists. See, e.g., State v. Walker, 62 A.3d 897, 906 (N.J. 2013).”
“In light of this fractured case law, we cannot say that ‘at the time of the challenged conduct, the contours of [White’s] right [were] sufficiently clear’ such that ‘every reasonable official would have understood’ that entering the home after smelling the burning marijuana violated the right. Ashcroft v. Al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal alterations and quotation marks omitted). It follows that the deputies are entitled to qualified immunity.”
Reversed.
Appeal from the United States District Court for the Northern District of Illinois, Kapala, J., Flaum, J.