ODOR OF POT PERMITS SEARCH, COURT RULES

Madison - The odor of burning marijuana gives police the right to enter a
residence without a search warrant, a divided state Supreme Court ruled
Friday.

Justice Diane Sykes, writing her first opinion since being appointed to the
court last September, came down on the side of police in a 4-3 decision
that reversed a Court of Appeals ruling in a Milwaukee drug case.

The decision seeks to balance the government's interest in law enforcement
and an 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," Sykes wrote.

Disagreeing with Sykes' opinion were Justices Ann Walsh Bradley and William
Bablitch, and Chief Justice Shirley Abrahamson, who said the decision
weakens Fourth Amendment protections against searches.

Assistant Attorney General Thomas Balistreri, who argued the case for the
state, said the decision helps police conducting drug investigations.

"It gives police another tool in the war on drugs," Balistreri said. "I
don't think that law-abiding people have anything to fear. But if you've
got a dozen close friends over to smoke pot, you may have."

The case involved the conviction of Vanessa D. Hughes on charges of
possession of cocaine with intent to deliver.

In 1996, Milwaukee police investigated suspicious people hanging around an
apartment complex known for its drug trade. A security guard at the complex
told police that two people believed to be involved in drug activity had
entered an apartment.

Police knocked on the door and heard noise inside. As they waited for
backup, Hughes' sister, a child, opened the door and the officers smelled
marijuana and entered.

Once inside the N. 18th St. apartment, officers asked Hughes for permission
to search, and she agreed. Police found that she was carrying cocaine but
did not find any marijuana or the two people they were seeking.

Milwaukee County Circuit Judge Laurence Gram refused to suppress the
results of the search, ruling that the smell of marijuana justified a
warrantless search. The Court of Appeals disagreed, saying the odor alone
was not enough.

The appeals court also ruled that Hughes' consent came too soon after the
illegal entry to be considered valid.

Sykes, however, noted that police need to have probable cause arising out
of a "fair probability" that contraband exists.

"The unmistakable odor of marijuana coming from Hughes' apartment provided
this fair probability," Sykes wrote. "The officers also knew that the
building was an area of high drug activity and that the security guard saw
two men entering the apartment who were not welcome at the complex because
of their illegal drug activity."

Modifying Case Law Wisconsin case law has held that warrantless entry is
rarely approved when a minor, non-criminal offense is involved. In fact,
the U.S. Supreme Court ruled in a state case that first-offense drunken
driving was not serious enough to provoke a search.

"The question in this case was, how serious must the offense be?"
Balistreri said. "It is a fine-tuning."

Case law also holds that a risk that evidence will be destroyed is
sufficient to authorize a warrantless search, but that the smell of burning
marijuana alone is not.

Sykes wrote that the risk of destruction of evidence justified the search.

"The apartment occupants had every incentive to intentionally destroy
evidence once they knew the police were present outside," she said. "Had
the officers stayed outside and called for a warrant, the evidence very
likely would have been lost."

Hughes argued that the penalty for first-offense marijuana possession did
not rise to a level justifying a warrantless search. Sykes disagreed,
noting that the state has a graduated penalty schedule for marijuana
possession and trafficking.

She said officers must make snap decisions balancing the risk of evidence
destruction against the seriousness of the crime. Officers did not know
whether they were dealing with first-offense possession or with
traffickers, she wrote.

Sykes also shot down Hughes' contention that police coerced the search.

"The evidence also established that without any prompting, Hughes lifted
her skirt and essentially revealed the drugs concealed in her underwear
before (police) even began the pat-down," Sykes wrote.

Writing for the minority, Bradley said Sykes' opinion relaxes Fourth
Amendment protections against improper searches.

"The majority should be unwilling to sacrifice the sanctity of the home and
be wary of so easy diluting our constitutionally guaranteed freedom from
warrantless entry," Bradley wrote.

Bradley said the majority was mistaken in looking at the whole range of
penalties for marijuana offenses in deciding that police had justification
for the search.

Hughes' lawyer, Andrea Taylor Cornwall, said the decision undermines
citizens' constitutional rights.

"It appears to chip away at our constitutional protections under the Fourth
Amendment," she said.

Sykes is running against Milwaukee Municipal Court Judge Louis Butler in
the April 4 election for the high court.

During a debate earlier this month, Butler accused Sykes of "working to
turn the clock back, especially in the area of civil rights."

However, he declined Friday to comment on Sykes' first written opinion,
saying the state's code of judicial ethics prevented him from doing so.