State v. Hughes

¶1¶ 49. (dissenting). In the late 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. They could have, but did not, obtain a search warrant. Instead, fearful that the evidence of a first offense possession of marijuana might be destroyed, they made a warrantless entry.

¶2¶ 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 *305an individual's home." Payton v. New York, 445 U.S. 573, 589 (1980). Accordingly, warrantless searches and seizures inside a home are "presumptively unreasonable." Id. at 586.

¶3¶ 51. The heightened protection afforded by the Fourth Amendment generally requires the issuance of a warrant by a neutral magistrate before the police may enter the thresholds of our residences. This constitutional requirement is not a mere formality. The neutral magistrate decides when our right to privacy must yield to the police need for intrusion. A warrant-less entry, as here, negates the role of the neutral magistrate and circumvents constitutional protections.

¶4¶ 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). Unfortunately, the majority's validation of the facts of the present case as exigent circumstances threatens to swallow the rule by relaxing the restraint embodied in the Fourth Amendment. The destruction of marijuana upon which the officers 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.

¶5¶ 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 Welshis unconvincing.

¶6*306¶ 54. In its attempt to distinguish Welsh, the majority first acknowledges that Welshdoes 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 WelshCourt offered scant guidance on defining the precise 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. Majority Op. at ¶ 31.

¶7¶ 55. This observation ignores the ample discussion in Welshon the method of determining the gravity of an offense. In addition to the footnote to which the majority points, the Court in Welshrefers to Paytonand its recognition of the importance of a felony limitation on warrantless intrusions into the home. Welsh, 466 U.S. at 750 n.12.

¶8¶ 56. The WelshCourt 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 *307some real immediate and serious consequences if he postponed action to get a warrant.

¶9(Emphasis added.)

¶10¶ 57. Welshalso restricts focus on the first-time commission of a particular offense absent knowledge that the suspect is a repeat offender subject to enhanced penalties. 466 U.S. at 746 n.6, 754. Consistent with Welsh, other courts have also evaluated exigency by focusing on first offense or simple marijuana possession when probable cause of aggravating circumstances has not been present. 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 Welshprovides sufficient direction in determining what constitutes a minor offense.

¶11¶ 58. In the present case, it is undisputed that the officers only had probable cause to believe that the occupants of Hughes's apartment were committing a first offense of marijuana possession, the State having conceded that point during oral argument. The crime for which probable cause existed to obtain a search warrant, the first offense of marijuana possession, is neither a felony nor a crime involving violence or threats of it. Pursuant to the Welshanalysis, the offense is "relatively minor."

¶12¶ 59. The majority sidesteps the breadth of discussion in the Fourth Amendment case of Welshand 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 Amendment context. In Blan-ton, the Court noted that although the penalty for an offense may include a fine and probation, primary *308emphasis 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 BlantonCourt 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. Id. at 544-45.

¶13¶ 60. Having invoked 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 majority cites no authority for its leap into the examination of the entire penalty scheme for a host of marijuana-related offenses.

¶14¶ 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 Welshmandate that the focus be on a first offense absent knowledge of aggravating circumstances. 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.

¶15¶ 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 Welshcontemplates when officers do not have probable cause to suspect other offenses. 466 *309U.S. at 746 n.6, 754. The attempt to deflect attention from the first offense of marijuana possession by an elaborate recitation of potential penalties for other marijuana offenses and potential penalty enhancers evades controlling precedent.

¶16¶ 63. The simple truth is that first-time possession of marijuana carries a maximum period of incarceration of six months. Wis. Stat. § 961.41(3g)(e). The parties concede that generally it can be charged either as a criminal misdemeanor or as a civil forfeiture. For first-time offenders, a court may even conditionally discharge and place the defendant on probation without any adjudication of guilt. Wis. Stat. § 961.47(1).

¶17¶ 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. See Milwaukee 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.1

¶18¶ 65. Before the court of appeals, the State even made a concession that first offense marijuana possession is a minor offense. After citing to Welshin 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 *310endeavor to temper this concession by claiming that it was made in the context of a separate argument is unpersuasive.

¶19¶ 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. Any offense that is included in a scheme of graduated penalties would thereby be rendered serious. This rationale would even include the first offense of driving while intoxicated (DWI) at issue in Welsh, because a subsequent DWI would impose stricter penalties and a potential incarceration period of one year. 466 U.S. at 746.

¶20¶ 67. The WelshCourt, however, explicitly rejected a focus on heightened penalties and repeat offenses without knowledge of the defendant's prior arrests or convictions. Indeed it is father ironic that the defendant in Welshwas actually a repeat offender and yet the Court specifically required police to presume a first offense without further knowledge of his repeater status. 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.

¶21¶ 68. Several courts have faithfully adhered to the Welshlimitations 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). These courts have not encountered difficulty in applying Welshto 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 *311examination of the entire penalty scheme for marijuana possession or the intent to deliver marijuana.

¶22¶ 69. In recognizing the first offense of drunk driving at issue in Welshas "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.

¶23¶ 70. Both drunk driving and illegal drug use represent blights on our communities. Yet, the United 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.

¶24¶ 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. Because the majority casts aside controlling precedent and upholds a constitutionally infirm search, I dissent.

¶25¶ 72. I am authorized to state that CHIEF JUSTI CE SHIRLEY S. ABRAHAMSON and JUSTICE WILLIAM A. BABLITCH join this dissenting opinion.