State of Iowa v. Alan Lee Watts, Jr. , 801 N.W.2d 845 ( 2011 )

IN THE SUPREME COURT OF IOWA
No. 10–0760
Filed August 19, 2011
STATE OF IOWA,
Appellee,
vs.
ALAN LEE WATTS, JR.,
Appellant.
Appeal from the Iowa District Court for Scott County, Mary E.
Howes (motion to suppress) and Paul L. Macek (bench trial), Judges.
Alan Lee Watts, Jr. appeals his convictions on two counts of
possession with the intent to deliver, two counts of drug stamp tax
violations, and one count of possession of drug paraphernalia.
AFFIRMED.
Mark C. Smith, State Appellate Defender, Dennis D. Hendrickson,
Assistant Appellate Defender, and Mary K. Conroy, Student Legal Intern,
for appellant.
Thomas J. Miller, Attorney General, Kyle Hanson, Assistant
Attorney General, Michael J. Walton, County Attorney, and Kelly
Cunningham, Assistant County Attorney, for appellee.
2
MANSFIELD, Justice.
Alan Lee Watts, Jr. appeals his drug-related convictions,
contending the district court erred in denying his motion to suppress
evidence obtained from searching his apartment. Although we find the
initial warrantless sweep of Watts’ apartment was unlawful due to a lack
of exigent circumstances, we nonetheless affirm his convictions. The
officers later procured a warrant to conduct a full search of the
apartment, the evidence in question was located during that search, and
the State has demonstrated that the warrant would have been sought
and granted even without the information from the earlier improper
sweep.
I. Background Facts and Proceedings.
On May 5, 2009, a special agent with the division of narcotics
enforcement in Davenport performed a routine traffic stop and discovered
marijuana. The driver of the stopped vehicle was questioned and
admitted to the special agent that he had obtained the marijuana from “a
subject” residing at 7110 Hillandale Road, apartment 12. The driver
further stated “the subject” had a large quantity of marijuana inside the
apartment.
The special agent relayed the information to Corporal Gil Proehl
and Detective Scott Lansing of the Davenport Police Department. They
proceeded to the Hillandale address to investigate. The apartment in
question was situated in a three-story building that had four apartments
on each floor. A common hallway on each floor separated two
apartments on each side and connected to front and back staircases.
The common hallway was also split in half by a door with two
apartments on each side of the doorway. Apartment 12 was located in
the southeast corner of the third floor.
3
Officers Proehl and Lansing ascended to the third floor via the west
stairwell. As the officers opened the common hallway door leading to
apartments 11 and 12, they immediately noticed a strong smell of raw
marijuana. Detective Lansing sniffed the door jambs to apartments 11
and 12 and concluded the odor was clearly emanating from apartment
12. Detective Lansing could also hear a television playing inside
apartment 12. At that time, Officers Proehl and Lansing asked two other
officers who were waiting downstairs to come up and discuss how to
proceed. The four officers decided to conduct a “knock and talk,” an
investigatory technique in which law enforcement officers knock on the
door of a dwelling seeking voluntary conversation and eventually consent
to search. See, e.g., State v. Reinier, 628 N.W.2d 460, 466 (Iowa 2001).
Detective Lansing knocked on the door and Watts answered. As
soon as Watts opened the door, an overpowering odor of raw marijuana
wafted out of the apartment. When Detective Lansing identified himself
as a police officer, Watts attempted to go back into the apartment and
shut the door. At this time, the officers detained Watts, took him into
the hallway, and secured him with handcuffs. The officers then entered
the apartment. During a protective sweep of the apartment, the officers
saw marijuana, packaging materials, and paraphernalia (including a
large water bong) in plain view in the living room. No other persons were
present in the apartment.
After performing the sweep, Officer Proehl provided Miranda
warnings to Watts and requested consent to search the apartment fully.
Watts initially said “he was caught,” but did not provide unequivocal
consent. Therefore, Detective Lansing prepared an application for a
search warrant for the apartment.
The narrative portion of the warrant application began:
4
On 5-5-09 members of the Tactical Operations Bureau,
Davenport Police Department received information that a
subject from 7110 Hillandale Road #12 was selling
marijuana from the apartment, and had a large quantity [of]
marijuana inside the apartment. With this information
members of the Tactical Operations Bureau conducted an
investigation.
The application then recited the events that occurred after the officers
arrived at the apartment. The application also had a standard
“informant’s attachment” with all boxes checked, but no specifics
provided. 1
Based upon this application, a magistrate approved the requested
search warrant. However, in doing so, the magistrate specifically crossed
out the “informant’s attachment.” The magistrate also wrote “none” as to
whether there had been reliance on information supplied by a
confidential informant.
After obtaining the warrant, the officers performed a full search of
the apartment and discovered almost five pounds of marijuana, a grow
operation in a bedroom closet with six live plants and a dead plant on a
drying rack, scales, grinders, packaging materials, and drug
paraphernalia. No drug tax stamps were attached to the marijuana or
packaging.
Watts was subsequently charged by trial information with two
counts of possession with the intent to deliver in violation of Iowa Code
section 124.401(1)(d), two counts of failure to affix drug tax stamps in
violation of Iowa Code section 453B.12, and one count of possession of
drug paraphernalia in violation of Iowa Code section 124.414 (2009).
On July 17, 2009, Watts filed a motion to suppress, arguing “the
search without a warrant was without consent, probable cause or exigent
1The attachment appears to be an outdated form, not the current form set forth
in Iowa R. Crim. P. 2.36 – Form 2.
5
circumstances, and the search pursuant to a warrant was on
information . . . without probabl[e] cause or in the alternative was based
on information obtained by the prior unlawful search without a warrant.”
On August 19, 2009, a hearing on the motion to suppress was
held. Officer Proehl was the only witness to testify, and he described the
foregoing events. The district court denied the motion to suppress.
Watts waived his right to a jury trial and proceeded to a bench trial
on the minutes of testimony. The district court found Watts guilty on all
five charges. Watts was sentenced to five years imprisonment on each of
the possession with the intent to deliver charges and the drug stamp
violations, all class “D” felonies, as well as thirty days on the drug
paraphernalia charge, a simple misdemeanor. See Iowa Code
§§ 124.401(1)(d), 453B.12, 124.414(3). The district court suspended all
of the sentences and placed Watts on probation for five years. Watts now
appeals the denial of his motion to suppress. 2
II. Standard of Review.
Because this case concerns the constitutional right to be free from
unreasonable searches and seizures, our review of the district court’s
suppression ruling is de novo. State v. Ochoa, 792 N.W.2d 260, 264
(Iowa 2010). We make an independent evaluation of the totality of the
circumstances as shown by the entire record. Id.
2Watts timely filed a notice of appeal, but did not seek discretionary review of his
misdemeanor conviction. See Iowa Code § 814.6(2)(d); Tyrrell v. Iowa Dist. Ct., 413
N.W.2d 674, 675 (Iowa 1987). However, when a defendant has improperly sought
review of a ruling by filing a notice of appeal rather than an application for discretionary
review, “the case shall not be dismissed, but shall proceed as though the proper form of
review had been requested.” Iowa R. App. P. 6.108. This court treats the defendant’s
notice of appeal as a request for discretionary review of his simple misdemeanor
conviction and grants the request. Iowa R. App. P. 6.106.
6
III. Merits.
A. Initial Warrantless Entry. We first consider whether the
initial warrantless entry into Watts’ apartment violated his constitutional
rights under the Fourth Amendment. The Fourth Amendment of the
United States Constitution protects individuals against unreasonable
searches and seizures. State v. Naujoks, 637 N.W.2d 101, 107 (Iowa
2001). In determining whether an exception to the warrant requirement
applies, “the court must assess a police officer’s conduct based on an
objective standard.” State v. Simmons, 714 N.W.2d 264, 272 (Iowa 2006).
Searches conducted without a warrant are per se unreasonable,
“subject only to a few specifically established and well-delineated
exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507,
514, 19 L. Ed. 2d 576, 585 (1967); accord Reinier, 628 N.W.2d at 464.
These exceptions include: (1) search based on probable cause coupled
with exigent circumstances, (2) consent search, (3) search incident to a
lawful arrest, and (4) search of items in plain view. Naujoks, 637 N.W.2d
at 107. The State has the burden of proving “by a preponderance of the
evidence that a warrantless search falls within one of these exceptions.”
Id. at 107–08.
The State concedes it did not have a warrant when the officers
initially entered Watts’ apartment, but seeks to justify the warrantless
entry based upon exigent circumstances: “[W]arrants are generally
required to search a person’s home or his person unless ‘the exigencies
of the situation’ make the needs of law enforcement so compelling that
the warrantless search is objectively reasonable under the Fourth
Amendment.” Mincey v. Arizona, 437 U.S. 385, 393–94, 98 S. Ct. 2408,
2414, 57 L. Ed. 2d 290, 301 (1978) (quoting McDonald v. United States,
335 U.S. 451, 456, 69 S. Ct. 191, 193, 93 L. Ed. 153, 158 (1948)).
7
Exigent circumstances sufficient to justify a search and
seizure without a warrant usually include danger of violence
and injury to the officers or others; risk of the subject’s
escape; or the probability that, unless taken on the spot,
evidence will be concealed or destroyed.
State v. Jackson, 210 N.W.2d 537, 540 (Iowa 1973). Exigent
circumstances must be supported by “specific, articulable grounds.”
Naujoks, 637 N.W.2d at 109. Here the State argues that it needed to
enter and clear the apartment because of the possibility of others in the
apartment who might either pose a threat to the officers or destroy
evidence.
A “protective sweep” is a quick and limited search of
premises, incident to an arrest and conducted to protect the
safety of police officers or others. It is narrowly confined to a
cursory inspection of those places in which a person might
be hiding.
Maryland v. Buie, 494 U.S. 325, 327, 110 S. Ct. 1093, 1094, 108 L. Ed.
2d 276, 281 (1990). In order to justify a protective sweep,
there must be articulable facts which, taken together with
the rational inferences from those facts, would warrant a
reasonably prudent officer in believing that the area to be
swept harbors an individual posing a danger to those on the
arrest scene.
Id. at 334, 110 S. Ct. at 1098, 108 L. Ed. 2d at 286; accord State v.
McGrane, 733 N.W.2d 671, 678 (Iowa 2007).
Just as a warrantless entry can be permissible to conduct a
protective sweep, the destruction of evidence may also be an exigent
circumstance when specific and articulable facts, along with any rational
inferences from those facts, would lead a reasonably prudent police
officer to believe that the events which are unfolding will cause evidence
of crime to be “ ‘threatened with immediate removal or destruction.’ ”
State v. Davis, 383 N.W.2d 524, 526 (Iowa 1986) (quoting State v. Holtz,
300 N.W.2d 888, 893 (Iowa 1981)).
8
The problem with an exigent circumstance theory here, though, is
the absence of facts that would have justified a reasonably prudent
officer in believing anyone else might be in the apartment. Officer Proehl
testified at the suppression hearing that he thought a protective sweep
was necessary “because we didn’t know if there were any other
individuals inside the residence.” But nothing indicated another
individual might be potentially inside the apartment. McGrane, 733
N.W.2d at 679. Rather, the information relayed to Officers Proehl and
Lansing mentioned only that “a subject” (i.e., Watts) was selling
marijuana from the apartment. See State v. Huff, 92 P.3d 604, 610 (Kan.
2004) (finding no exigent circumstances to search an apartment after a
person smelling of marijuana exited the apartment and was arrested,
given “[t]he absence of evidence that someone remained inside”).
For the same reasons, the record does not support an inference
that drugs were likely to be destroyed. See, e.g., Kentucky v. King, 563
U.S. ___, ___, 131 S. Ct. 1849, 1854, 179 L. Ed. 2d 865, 872 (2011)
(noting officers heard movements within the apartment after knocking
and announcing their presence). 3 Hence, there was no reasonable fear
that evidence would be lost during the time necessary to obtain a
warrant. State v. Holtz, 300 N.W.2d 888, 893 (Iowa 1981) (“A warrant
was required unless ‘ “an immediate major crisis in the performance of
duty” ’ afforded neither time nor opportunity to apply to a magistrate.”
(quoting Dorman v. United States, 435 F.2d 385, 391 (D.C. Cir. 1970)));
3In Kentucky v. King, the U.S. Supreme Court held that the Fourth Amendment
does not foreclose the government from relying on an exigent circumstances exception
where the police allegedly “created” the exigent circumstances, so long as they did not
do so by means of an actual or threatened violation of the Fourth Amendment. 563
U.S. at ___, 131 S. Ct. at 1858, 179 L. Ed. 2d at 876. That case, as here, involved a
“knock and talk,” although once the knock was made the police “could hear people
inside moving” and “things being moved inside the apartment.” Id. at __, 131 S. Ct. at
1854, 179 L. Ed. 2d at 872.
9
see also Latham v. Sullivan, 295 N.W.2d 472, 478 (Iowa Ct. App. 1980)
(suggesting the posting of officers outside the door could have guarded
against destruction while a warrant was obtained).
The State maintains the officers were unsure whether the driver of
the stopped vehicle was still in custody or released, thus creating the
possibility that the driver would warn Watts to destroy or remove the
marijuana. However, even assuming this possibility was reasonable
(noting, of course, the driver was the one who reported Watts to the
police), it still does not provide exigent circumstances because Watts was
detained and handcuffed at the time the officers entered his apartment.
Also, marijuana is not a substance that poses “an immediate
threat” due to its “volatile nature” to support a finding of exigency. Cf.
Simmons, 714 N.W.2d at 273 (concluding that when officers smell
anhydrous ammonia and have probable cause to believe they have
discovered a methamphetamine lab, the serious dangers created by the
chemicals can justify an immediate limited search of an apartment to
remove the hazardous items in order to protect the officers and others).
Accordingly, we find the State has failed to show the sweep of the
apartment was reasonable under the circumstances.
In short, the State’s exigent circumstances claim boils down to an
argument that “we didn’t know if there were any other individuals inside
the residence,” to quote Officer Proehl. But of course, when a suspect is
detained outside his or her residence, it is normally possible there could
be other individuals inside. If this mere possibility, without more,
constituted exigent circumstances, it would be tantamount to holding
that a warrantless “sweep” of a person’s residence could regularly be
conducted whenever that person was apprehended at his or her
residence. The Fourth Amendment, we believe, requires more. See
10
Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 2040, 23 L. Ed.
2d 685, 694 (1969) (rejecting the notion of a warrantless search of a
residence incident to arrest). “Any warrantless entry based on exigent
circumstances must, of course, be supported by a genuine exigency.”
King, 563 U.S. at ___, 131 S. Ct. at 1862, 179 L. Ed. 2d at 881.
“[T]he Fourth Amendment has drawn a firm line at the entrance to
the house. Absent exigent circumstances, that threshold may not
reasonably be crossed without a warrant.” Payton v. New York, 445 U.S.
573, 590, 100 S. Ct. 1371, 1382, 63 L. Ed. 2d 639, 653 (1980). Under
the facts of this case, the State has failed to show specific, articulable
grounds to support a finding of exigent circumstances.
B. Subsequent Search Pursuant to Warrant. After the initial
warrantless entry, the officers obtained a search warrant and performed
a full search of apartment 12. Therefore, we must now determine
whether this search was tainted by what the officers observed in plain
view during the earlier unlawful entry.
“The exclusionary rule requires the suppression of evidence
discovered as a result of illegal government activity.” McGrane, 733
N.W.2d at 680. To determine whether an improper entry invalidates a
subsequent search pursuant to a warrant, we need to consider whether
“ ‘the agents’ decision to seek the warrant was prompted by what they
had seen during the initial entry, or if information obtained during that
entry was presented to the Magistrate and affected his decision to issue
the warrant.’ ” McGrane, 733 N.W.2d at 681 (quoting Murray v. United
States, 487 U.S. 533, 542, 108 S. Ct. 2529, 2536, 101 L. Ed. 2d 472,
483–84 (1988)). In making the latter determination, “we excise the
illegally obtained information from the warrant application and
11
determine whether the remaining legally obtained information supports
probable cause.” Id. Stated another way,
“When an affidavit in support of a search warrant
contains information which is in part unlawfully obtained,
the validity of a warrant and search depends on whether the
untainted information, considered by itself, establishes
probable cause for the warrant to issue. . . . If the lawfully
obtained information amounts to probable cause and would
have justified issuance of the warrant, apart from the tainted
information, the evidence seized pursuant to the warrant is
admitted.”
Naujoks, 637 N.W.2d at 113 (quoting James v. United States, 418 F.2d
1150, 1151, 1152 (D.C. Cir. 1969)); accord State v. Showalter, 427
N.W.2d 166, 168 (Iowa 1988).
We have already concluded that the officers were not legally in the
apartment when they discovered the marijuana, packaging materials,
and paraphernalia in plain view. See Horton v. California, 496 U.S. 128,
136, 110 S. Ct. 2301, 2308, 110 L. Ed. 2d 112, 123 (1990) (holding one
of the requirements of the “plain view” doctrine is that the officer must
not have violated the Fourth Amendment in “arriving at the place from
which the evidence could be plainly viewed”). Also, the magistrate
marked out the “informant’s attachment” and indicated that no reliance
was being placed on the confidential informant. 4 Nonetheless, the State
argues that the “overpowering odor of raw marijuana coming from inside
the apartment” (according to the officer’s affidavit) and the officer’s
explanation in the application that he was a narcotics investigator with
4If the grounds for issuance of a warrant are supplied by an informant, Iowa
Code section 808.3 requires that the application “establish the credibility of the
informant or the credibility of the information given by the informant.” Here the
narrative portion of the warrant application stated the Davenport Police Department
had “received information that a subject was selling marijuana from the apartment,”
but it did not explain why the informant or his information was credible. As noted
above, the separate “informant’s attachment” appeared to be an old form, did not
provide specifics, and had every box checked.
12
two years’ experience investigating controlled substances offenses were
enough to sustain the warrant by themselves.
Probable cause to search exists if, under the totality of the
circumstances, “a person of reasonable prudence would believe that
evidence of a crime might be located on the premises to be searched.”
State v. Davis, 679 N.W.2d 651, 656 (Iowa 2004).
In considering whether the detection of an odor establishes
sufficient probable cause for a magistrate to issue a search warrant, the
United States Supreme Court has stated:
If the presence of odors is testified to before a magistrate and
he finds the affiant qualified to know the odor, and it is one
sufficiently distinctive to identify a forbidden substance, this
Court has never held such a basis insufficient to justify
issuance of a search warrant. Indeed it might very well be
found to be evidence of most persuasive character.
Johnson v. United States, 333 U.S. 10, 13, 68 S. Ct. 367, 369, 92 L. Ed.
436, 440 (1948).
Our court has followed this reasoning and held that a trained
officer’s detection of a sufficiently distinctive odor, by itself or when
accompanied by other facts, may establish probable cause. See
Simmons, 714 N.W.2d at 272–73 (smell of anhydrous ammonia drifting
from an apartment); State v. Moriarty, 566 N.W.2d 866, 869 (Iowa 1997)
(smell of burnt marijuana on defendant’s person plus the observation of
an unused alligator clip hanging from the rearview mirror of defendant’s
vehicle); State v. Merrill, 538 N.W.2d 300, 301–02 (Iowa 1995) (smell of
burnt marijuana while defendant exited vehicle coupled with furtive
movement); State v. Eubanks, 355 N.W.2d 57, 59 (Iowa 1984) (smell of
marijuana emanating from a vehicle).
In Simmons, for example, an officer responded to a complaint of
loud music coming from an apartment. 714 N.W.2d at 269. While
13
standing at the apartment subject to the complaint, the officer smelled
what he believed was anhydrous ammonia coming from the apartment
across the hall. Id. The officer contacted his superior who recommended
the officer contact a state-certified clandestine methamphetamine lab
expert. Id. When the expert arrived, he confirmed the smell to be
anhydrous ammonia commonly used in the production of
methamphetamine. Id. The officers then knocked on the door and a
woman asked who was there. Id. The officers identified themselves and
after receiving no response, forcibly entered the apartment with guns
drawn. Id. Upon appeal from a motion to suppress, we found the
officers had probable cause to believe the occupants of the apartment
were engaged in criminal activity based on their “training and experience,
coupled with the distinct odor of anhydrous ammonia and the lack of
household uses for it.” Id. at 273.
In this case, upon opening the hallway door at the mid-point of the
common hallway, the officers immediately noticed “a strong odor” of
marijuana. By sniffing at the door jamb of apartment 12, they could tell
the marijuana odor came from that apartment. When Watts opened the
apartment door after the officers knocked, the aroma became
“overpowering.” We find these facts set forth in the warrant application
by themselves provided probable cause for issuance of the warrant. See
Merrill, 538 N.W.2d at 301–02 (noting that a majority of states have held
that an odor of marijuana alone may provide probable cause to justify a
warrantless search); 2 Wayne R. LaFave, Search and Seizure: A Treatise
on the Fourth Amendment § 3.6(b), at 311 (4th ed. 2004) [hereinafter
LaFave] (stating that “the courts have found probable cause to search
when the distinctive odor of marijuana is found emanating from a
particular place”) (citing cases). But cf. Huff, 92 P.3d at 610 (refusing to
14
validate a subsequent search that occurred after an improper
warrantless entry where there was “nothing in the record to demonstrate
that the odor came from the apartment rather than Rogers herself”).
Notably, many other courts have found that the odor of raw or
growing marijuana by itself can provide sufficient probable cause for a
search. See United States v. Charles, 29 F. App’x 892, 895–96 (3d Cir.
2002) (odor of growing marijuana that was noticeable when the
defendant opened the door by itself provided probable cause for issuance
of search warrant); United States v. Winters, 221 F.3d 1039, 1042 (8th
Cir. 2000) (the smell of raw marijuana “created probable cause”); United
States v. Downs, 151 F.3d 1301, 1303 (10th Cir. 1998) (strong smell of
raw marijuana provided probable cause); People v. Cook, 532 P.2d 148,
150 (Cal. 1975) (“odor of unburned marijuana” amounted to probable
cause), abrogated on other grounds by People v. Doolin, 198 P.3d 11, 36
n.22 (Cal. 2009); State v. Gonzales, 789 P.2d 206, 207 (Idaho Ct. App.
1990) (smell of raw marijuana alone provided probable cause); State v.
Goff, 239 P.3d 467, 470 (Kan. Ct. App. 2010) (“The smell of raw
marijuana alone is sufficient to give an officer both reasonable suspicion
and probable cause.”); People v. Kazmierczak, 605 N.W.2d 667, 669–70
(Mich. 2000) (“Like the majority of courts in other states and
jurisdictions, we are persuaded that detection of the odor of either fresh
marijuana or marijuana smoke, standing alone, provides probable cause
for a warrantless search.”); State v. Jones, 932 N.E.2d 904, 916 (Ohio Ct.
App. 2010) (officer had probable cause to conduct a search “based
exclusively upon the odor of raw marijuana coming from appellant’s
car”); State v. Wright, 977 P.2d 505, 508 (Utah Ct. App. 1999) (odor of
raw marijuana provided probable cause); State v. Cole, 906 P.2d 925,
941 (Wash. 1995) (smell of growing marijuana resulted in probable
15
cause), abrogated on other grounds by In re Det. of Peterson, 42 P.2d 952,
958–59 (Wash. 2002); McKenney v. State, 165 P.3d 96, 98–99 (Wyo.
2007) (smell of raw marijuana amounted to probable cause); see also 2
LaFave § 3.6(b), at 310–11 (“It appears to be generally accepted that the
smell of marijuana in its raw form or when burning is sufficiently
distinctive to come within the rule of the Johnson case.”).
Watts alternatively argues the warrant application did not
demonstrate that the affiant, Detective Lansing, was qualified to
recognize the odor of raw marijuana. We disagree. According to the
application, Detective Lansing had been a Davenport police officer for
seven-and-a-half years, had been involved in the investigation of
controlled substance offenses for the past two years, and had attended
schools pertaining to the investigation of controlled substance offenses.
We find these qualifications allow the inference that Detective Lansing
could identify the odor in question. While it might have been preferable
if the warrant application had specifically explained how and why the
officer was qualified to detect the odor of raw marijuana, see Moriarty,
566 N.W.2d at 869 (finding an officer with five years of experience and
prior instruction on the odor of marijuana had sufficient knowledge to
recognize the scent of marijuana); see also Marcum v. State, 843 N.E.2d
546, 548 (Ind. Ct. App. 2006) (finding an officer was adequately qualified
to detect the odor of raw marijuana based on his training at the law
enforcement academy, drug interdiction schools, and experience on the
job), the application was minimally sufficient under the circumstances.
See State v. Olson, 872 P.2d 64, 67 (Wash. Ct. App. 1994) (ability to
recognize the odor of both growing and burning marijuana could be
inferred from statements that the officer had attended courses on
controlled substance investigations and had participated in numerous
16
controlled substance investigations, including marijuana investigations);
2 LaFave § 3.6(b), at 313 (“The cases indicate that it is common for the
officer . . . who is applying for a warrant to explain the basis of his
expertise in identifying marijuana by smell, usually by referring to his
formal police training or to his prior experience in marijuana
enforcement or both. It appears, however, that such an explanation is
not a sine qua non to a finding of probable cause based upon a claimed
smelling of marijuana.”). But compare State v. Holley, 899 N.E.2d 31,
34–35 (Ind. Ct. App. 2008) (upholding the trial court’s ruling that there
was no probable cause for a warrantless search where the officer had
attended one seminar where he was shown raw marijuana but there was
no evidence he had any formal training or experience in detecting the
odor of raw marijuana), with Bivens v. State, 880 So. 2d 486, 490 (Ala.
Crim. App. 2003) (memorandum opinion affirming convictions over
dissent’s objection that police officer only testified he had been an officer
for five years and did not testify that “he could recognize the distinctive
smell of marijuana from his experience and training as a police officer”),
and Ramsey v. State, 703 S.E.2d 339, 342 n.8 (Ga. Ct. App. 2010)
(officer’s testimony that he had worked at the sheriff’s department for
over four years and had previously encountered individuals in possession
of narcotics was enough to justify trial court’s conclusion that officer was
able to smell burning marijuana).
Lastly, there remains the question whether the officers would have
sought the search warrant even without the information provided by
their original, warrantless entry. See McGrane, 733 N.W.2d at 682
(stating “we must also determine whether the deputies’ ‘decision to seek
the warrant was prompted by what they had seen during the initial
entry’ ” (quoting Murray, 487 U.S. at 542, 108 S. Ct. at 2536, 101 L. Ed.
172d at 483)). The record indicates that they would have. As Officer Proehl
testified, once Watts opened the door and the officers noticed the
overwhelming odor of marijuana, “I believed I had probable cause for a
search warrant. I was hoping to gain consent or to secure the residence
to apply for a search warrant.” Proehl added that when he did not
receive clear and unequivocal consent, he opted to seek a search
warrant.
IV. Conclusion.
The district court properly denied Watts’ motion to suppress
evidence. Although the initial entry into Watts’ apartment was not
justified by exigent circumstances, the subsequent search warrant was
supported by probable cause (and would have been sought) even without
the information from the improper sweep. We affirm Watts’ convictions
and sentence.
AFFIRMED.