APPEALS COURT OVERTURNS DRUG CONVICTION

Police Search With No Warrant Was Illegal

WAUSAU - A state appeals court Tuesday overturned a drug conviction
because police in northern Wisconsin illegally entered a man's
apartment without a search warrant after another tenant complained
about smelling marijuana.

Donovan M. Bender, 22, of Superior, was convicted of misdemeanor
marijuana possession a year ago and fined $260.

In throwing out the conviction, the 3rd District Court of Appeals
ruled that Superior police officers wrongly created the justification
for going into the apartment without a warrant by knocking on the door.

"Their knock cannot be viewed as a legitimate investigative
technique," the appeals court said. "Before the police knocked on the
door, there was no threat of destruction of evidence."

Prosecutors argued that police, in trying to kick in the door, acted
properly because they believed Bender started to destroy evidence
after they identified themselves as officers.

But the appeals court said the officers violated Bender's
constitutional right against unreasonable searches and seizures.

"The police officers in this case gave no reason why they could not
secure a warrant before entering Bender's apartment," the panel said.

According to court records, the officers went to the apartment
building April 6, 2005, after a tenant called to report the smell of
marijuana. The man complained he was "sick and tired of the person in
apartment No. 12 smoking marijuana," court records said.

The officers went to the door of the apartment, smelled marijuana and
knocked, court records said. When Bender refused to open the door,
the officers tried twice to kick it in. Then Bender opened it.

Officers saw some dried plant stems and several plastic bags with
suspected marijuana in the apartment and arrested Bender, court records said.

Bender's attorney, state public defender Lora Cerone, said Tuesday's
decision was a victory for all citizens because it emphasizes the
importance of the Fourth Amendment.

"He is a kid who is not in a lot of trouble," she said about Bender.
"He was in his own home and police entered without a warrant and that
affects all of us. I am happy and relieved."

The appeals court said there are four urgent circumstances that allow
police to do a search without a warrant:

. An arrest made in "hot pursuit."

. A threat to the safety of the suspect or others.

. A risk that evidence will be destroyed.