COURT OF APPEALS

DECISION

DATED AND FILED

April 28, 2021

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2020AP1726 Cir. Ct. No. 2019JV17

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

IN THE INTEREST OF B.W.R., A PERSON UNDER THE AGE OF 18:

STATE OF WISCONSIN,

 PETITIONER-RESPONDENT,

 V.

B.W.R.,

 RESPONDENT-APPELLANT.

APPEAL from an order of the circuit court for Walworth County: 

DAVID M. REDDY, Judge. Affirmed. 
No. 2020AP1726

2

¶1 NEUBAUER, C.J.1 Brady2appeals from a delinquency order and 

the denial of his motion to suppress evidence obtained following law enforcement 

officers’ warrantless entry into his apartment. He asserts the entry was unlawful 

and all evidence flowing from it must be suppressed. Because we conclude the 

entry was justified by the existence of probable cause and exigent circumstances, 

we disagree and affirm.

Background

¶2 An evidentiary hearing was held on Brady’s suppression motion at 

which two City of Elkhorn police officers collectively provided the following 

evidence.

¶3 On February 1, 2019, at approximately 10:07 p.m., 

on-duty police, Officer Michael Finster and Sergeant Daniel Croak, were 

dispatched to an apartment building to investigate a complaint by the resident of 

Unit D about marijuana use in the next-door Unit C. Finster and Croak, who had 

been in law enforcement for three and one-half years and over thirteen years 

respectively, were in full-duty uniform.

¶4 The officers spoke with the complainant at Unit D, and Croak 

stepped inside Unit D and immediately smelled the strong odor of marijuana. The

neighbor stated that he noticed the odor upon arrival at his home shortly before 

 

1

 This appeal is decided by one judge pursuant to WIS. STAT. § 752.31(2)(e) (2019-20). 

All references to the Wisconsin Statutes are to the 2019-20 version unless otherwise noted.

2

 We use the same pseudonym the juvenile uses in briefing to protect his confidentiality.
No. 2020AP1726

3

and that the neighbors in Unit C regularly smoked marijuana, which he could 

smell. Finster also smelled burnt marijuana coming from Unit C.

¶5 Croak was familiar with Unit C from prior police contacts and was 

aware of suspected drug use in the apartment, specifically of Brady dealing drugs

on the property beginning approximately a year earlier.

¶6 Finster knocked on the door of Unit C while Croak was standing 

behind him. Brady pulled a closed blind away from the window next to the door 

and looked out at the officers. When Brady did not open the door, the officers 

knocked again. Tammy, who the officers recognized as Brady’s mother from 

prior contacts, opened the door and the officers smelled a strong odor of burnt 

marijuana coming from inside the apartment.

¶7 Finster told Tammy about the complaint, confronted her about the 

odor, and asked to enter. She said no, and as she began to shut the door, Finster 

leaned into it and the officers entered the apartment. The officers discovered the 

evidence leading to the drug-related charges in this case.

¶8 The circuit court denied the suppression motion and Brady was 

ultimately adjudicated delinquent and sentenced. He now appeals.3 

 

3

 The disposition order before us on appeal encompassed other charges from separate 

cases that are not relevant to this appeal.
No. 2020AP1726

4

Discussion

¶9 The issue is whether exigent circumstances supported the 

warrantless entry into the apartment. Brady concedes that the officers had 

probable cause to believe that the residence contained evidence of a crime. 

However, he contends the entry was unlawful because exigent circumstances did 

not exist. We disagree.

¶10 As we stated in State v. Parisi, 2014 WI App 129, 359 Wis. 2d 255,

857 N.W.2d 472:

 Warrantless entry into a residence is generally 

prohibited by the Fourth Amendment to the United States 

Constitution. An exception to this rule allows for such 

entry where there is probable cause to believe evidence of a 

crime will be found in the residence and there is “a risk that 

evidence will be destroyed” if time is taken to obtain a 

warrant, i.e., an exigent circumstance. “In such instances, 

an individual’s substantial right to privacy in his or her 

home must give way to the compelling public interest in 

effective law enforcement.” The test for whether an 

exigent circumstance existed is an objective one—“whether 

a police officer, under the facts as they were known at the 

time, would reasonably believe that delay in procuring a 

search warrant would ... risk destruction of evidence.” 

Id., ¶9 (citations omitted). It is the state’s burden to show that an entry without a 

warrant is “both supported by probable cause and justified by exigent 

circumstances.” See State v. Robinson, 2010 WI 80, ¶24, 327 Wis. 2d 302, 786 

N.W.2d 463. When reviewing an order granting or denying a motion to suppress 

evidence, we uphold a circuit court’s findings of historical fact unless they are 

clearly erroneous, but “we independently apply constitutional principles to those

facts.” Id., ¶22.
No. 2020AP1726

5

¶11 With good reason, Brady concedes that the officers had probable 

cause to believe that the apartment contained evidence of a crime. Nevertheless, 

we briefly address the issue as it provides foundation for the exigent circumstances 

analysis.

¶12 “The quantum of evidence required to establish probable cause to 

search is a ‘fair probability’ that contraband or evidence of a crime will be found 

in a particular place.” State v. Hughes, 2000 WI 24, ¶21, 233 Wis. 2d 280, 607 

N.W.2d 621 (citation omitted); see also Robinson, 327 Wis. 2d 302, ¶3 

(concluding officers had probable cause to search because evidence of illegal drug 

activity “would probably be found” in the place to be searched). Our supreme 

court has held that “[t]he unmistakable odor of marijuana coming from [a 

suspect’s] apartment provide[s] this fair probability.” Hughes, 233 Wis. 2d 280, 

¶22. Similarly, here, the unmistakable odor of marijuana coming from the 

apartment provided “a ‘fair probability’ that contraband or evidence of a crime 

[would] be found” there. See id., ¶21.

¶13 The officers testified that they were dispatched to the apartment to 

investigate marijuana use in Unit C. They spoke with the neighboring 

complainant and noted the odor. When Tammy opened the door, they confirmed 

the smell of marijuana coming from Unit C. The officers reasonably concluded 

that marijuana use was taking place in Unit C. Based upon these facts, as in 

Hughes, there was a “fair probability” here that evidence of a crime—the 
No. 2020AP1726

6

possession of marijuana—would be found in Unit C. Thus, the officers had 

probable cause to search the residence for evidence of such crime.4

¶14 As it pertains to the facts here, “[t]he test for whether an exigent 

circumstance existed is an objective one—‘whether a police officer, under the 

facts as they were known at the time, would reasonably believe that delay in 

procuring a search warrant would ... risk destruction of evidence.’” See Parisi,

359 Wis. 2d 255, ¶9 (quoting Hughes, 233 Wis. 2d 280, ¶24). The undisputed 

facts of this case squarely satisfy that test.

¶15 We first note here that the smell of burnt marijuana itself indicated 

evidence was being destroyed through the process of burning. See id., ¶10 (“Our 

supreme court has held that the smell of burning marijuana gives ‘rise to a 

reasonable belief that the drug—the evidence—was likely being consumed by the 

occupants and consequently destroyed.’” (quoting Hughes, 233 Wis. 2d 280, 

¶26)). However, an even greater exigency is

the possibility of the intentional and organized destruction 

of the drug by the apartment occupants once they were 

aware of the police presence outside the door. Marijuana 

and other drugs are highly destructible.... It is not 

unreasonable to assume that a drug possessor who knows 

the police are outside waiting for a warrant would use the 

delay to get rid of the evidence.

Hughes, 233 Wis. 2d 280, ¶26; see also Robinson, 327 Wis. 2d 302, ¶31 (“Drugs 

like marijuana are easily and quickly destroyed.”). 

 

4

 While Brady contends that the officers’ testimony regarding prior complaints was not 

substantiated and therefore unreliable, this information is not required in order to find that 

probable cause or exigent circumstances supported the entry.
No. 2020AP1726

7

¶16 The risk was significant that if the officers delayed entry to obtain a 

warrant the occupants would have engaged in “the intentional and organized 

destruction of the drug.” See Hughes, 233 Wis. 2d 280, ¶¶26, 39. Both Brady 

and Tammy were in the apartment and aware of the officers’ presence as well as 

the complaint of marijuana use. An officer could reasonably believe that the 

occupants were likely to “attempt to prevent evidence from being discovered by 

the police, including through destruction of such evidence.” See Parisi, 359 

Wis. 2d 255, ¶13. 

¶17 In Hughes, our supreme court held that exigent circumstances exist 

where there is a strong odor of marijuana emanating from a residence and 

occupants simply become aware of police outside the door. Hughes, 233 Wis. 2d 

280, ¶¶1, 27, 35 (adding that in such circumstances the occupants “ha[ve] every 

incentive to intentionally destroy evidence” and the likelihood that they will do so 

is “extremely high”).5 

¶18 Brady cites to our decision in Kiekhefer for his contention that the 

warrantless entry into his home did not fall within the exigent circumstances 

exception. See State v. Kiekhefer, 212 Wis. 2d 460, 569 N.W.2d 316 (Ct. App. 

1997). Kiekhefer does not aid Brady.

¶19 In Kiekhefer, we found unlawful the officers’ unannounced entry 

into Kiekhefer’s bedroom after they detected the odor of burning marijuana 

 

5

 Unlike in State v. Phillips, No. 2015AP927-CR, unpublished slip op. ¶30 (WI App 

June 14, 2016) (an unpublished case Brady cites for persuasive value), where the officers smelled 

raw marijuana and there was no indication that anyone was in the residence other than a small 

child who had exited, here the officers smelled burnt marijuana and the occupants were still in the 

apartment.
No. 2020AP1726

8

coming from behind the closed bedroom door. Kiekhefer, 212 Wis. 2d at 466,

474-75. As we noted in Parisi, however, in Kiekhefer there was “‘no indication 

that Kiekhefer was aware’ of the officers’ presence outside his door,” Parisi, 359 

Wis. 2d 255, ¶16 (quoting Kiekhefer, 212 Wis. 2d at 477), with the implication 

being that in such a circumstance there was no risk of the destruction of evidence 

if the officers waited for a warrant. See also Hughes, 233 Wis. 2d 280, ¶28 

(distinguishing Kiekhefer because Kiekhefer “was in his room apparently unaware 

of [the police officers’] presence until they entered without a warrant”). 

Furthermore, our decision in Kiekhefer was also based upon our conclusion that 

the suspected contraband in that case—“a large quantity of marijuana”—“could 

not be easily or quickly destroyed in Kiekhefer’s bedroom.” Kiekhefer, 212 

Wis. 2d at 478. In Parisi, we distinguished the factual situation before us in that 

case from that before us in Kiekhefer because in Parisi, “the occupants would 

have had an entire apartment, presumably including sinks and toilets, to utilize for 

destruction of the suspected marijuana.” Parisi, 359 Wis. 2d 255, ¶17. 

¶20 Unlike the situation in Kiekhefer, in this case, when Brady peered 

out the window and saw the police, declining to open the door, he was well aware 

of the officers’ presence and with that knowledge remained in the location where 

evidence of criminal activity was likely located. Also, unlike the situation in 

Kiekhefer but akin to the situation in Parisi, here the occupants “would have had 

an entire apartment, presumably including sinks and toilets, to utilize for 

destruction of the suspected marijuana.” See Parisi, 359 Wis. 2d 255, ¶17.

¶21 That the officers did not hear anything indicating the destruction of 

evidence was underway is of no moment under these facts. “Drugs like marijuana 

are easily and quickly destroyed.” Robinson, 327 Wis. 2d 302, ¶31. “In deciding 

whether actions are permissible under the Fourth Amendment, we need only 
No. 2020AP1726

9

determine that the actions of law enforcement were reasonable.” Hughes, 233

Wis. 2d 280, ¶23. Furthermore, “[o]ur review of the exigent circumstances is 

‘directed by a flexible test of reasonableness under the totality of the 

circumstances.’” State v. Phillips, 2009 WI App 179, ¶8, 322 Wis. 2d 576, 778 

N.W.2d 157 (quoting State v. Smith, 131 Wis. 2d 220, 229, 388 N.W.2d 601 

(1986)). At the moment Tammy began to shut the door, the officers’ actions in 

entering without a warrant were reasonable under the totality of circumstances.6 

¶22 For the foregoing reasons, we conclude the officers had probable 

cause to enter the apartment without a warrant and exigent circumstances justified 

their decision to do so.

By the Court.—Order affirmed. 

This opinion will not be published. See WIS. STAT. 

RULE 809.23(1)(b)4.

 

6

 Brady contends that the officers should have obtained a warrant after talking with the 

neighbor—that because they had sufficient probable cause at that juncture, they should have 

stopped to obtain a warrant. However, Brady also appropriately acknowledges that the officers 

were not required to do so. As Brady notes, the officers could lawfully knock to obtain consent 

without obtaining a warrant, even if they had sufficient evidence to do so. See Kentucky v King, 

563 U.S. 452, 466-67 (2011) (where the Court also held that prior cases denying exigency based 

on arguments premised on “police-created exigency” by knocking and announcing have been 

abrogated); see, e.g., State v. Robinson, 2010 WI 80, ¶32, 327 Wis. 2d 302, 786 N.W.2d 463

(police conduct themselves in “utterly appropriate and lawful manner” when knocking and 

announcing).

We do not consider Brady’s suggestion that the exigency analysis should be different 

because the evidence discovered with this entry led to a juvenile disposition as it is undeveloped. 

See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (court of appeals 

need not consider inadequately developed arguments).