SMELL OF DRUGS GIVES OFFICERS RIGHT TO SEARCH, STATE COURT RULES

MADISON -- The smell of burning marijuana gives police the right to enter a
home without a search warrant, the state Supreme Court ruled Friday.

The high court said that marijuana possession is a serious enough crime, and
the risk of evidence being destroyed was so great that police acted
reasonably in conducting a search of a Milwaukee apartment.

The decision came in a case in which police investigated on June 4, 1996, a
report of suspicious people hanging around a Milwaukee apartment complex
that they said was known for drug trade.

A security guard told police that two men known for being involved in drug
activity had entered the apartment of Vanessa Hughes, court records said.

While they were waiting for backup, Hughes' younger sister opened the door
and officers could smell marijuana. The police pushed open the door and
Hughes consented to a search. Officers said they found cocaine on Hughes.

The trial court in Milwaukee County refused to suppress the results of the
search. Hughes pleaded guilty to drug possession and was sentenced in
October 1996 to 24 months in prison.

She appealed to the 1st District Court of Appeals, which said Hughes'
consent to the search came too soon after the officers' illegal entry to be
considered valid.

In Friday's 4-3 decision, the state Supreme Court reversed the appeals
court.

"Had the officers stayed outside and called for a warrant, the evidence
would have been lost," Justice Diane Sykes said, writing for the majority
for the first time.

The officers acted reasonably based on the odor of marijuana coming from the
apartment, which established probable cause that they would find contraband
or evidence of a crime, Sykes wrote.

"This case presents us with a dilemma was old as the constitution itself:
how best to balance the government's interest in law enforcement with the
individual's right to be left alone," she wrote. "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."

Thomas Balistreri, an assistant attorney general who argued the police
search was legal, said courts have carved out exceptions to the requirement
that police have a warrant to enter a private residence.

"This (ruling) does not really change the substance of the rule of law that
exists," he said. "Police can enter without a warrant, that's a
well-established rule."

The officers had sufficient reason to believe a crime was being committed
and risked losing any of the evidence of the crime, marijuana possession, if
they waited to obtain a warrant, he said.

"They're standing out there and all of the sudden somebody opens the door...
and all of the sudden they're in a cloud of marijuana smoke," he said.

Donald Downs, a political science professor at the University of
Wisconsin-Madison, said the court's decision is not inconsistent with
previous rulings.