IN THE COURT OF APPEALS OF IOWA

No. 13-1218

Filed July 16, 2014

STATE OF IOWA,

Plaintiff-Appellee,

vs.

JAMES R. THIELMAN,

Defendant-Appellant.

________________________________________________________________

Appeal from the Iowa District Court for Polk County, Carol L. Coppola, 

District Associate Judge.

Defendant appeals his conviction for possession of a controlled substance 

(marijuana). REVERSED AND REMANDED.

Gerald B. Feuerhelm of Feuerhelm Law Office, P.C., Des Moines, for 

appellant.

Thomas J. Miller, Attorney General, Mary A. Triick, Assistant Attorney 

General, John P. Sarcone, County Attorney, and Andrea Petrovich, Assistant 

County Attorney, for appellee.

Considered by Danilson, C.J., McDonald, J., and Mahan, S.J.*

*Senior judge assigned by order pursuant to Iowa Code section 602.9206 (2013).
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MAHAN, S.J.

Defendant appeals his conviction for possession of a controlled substance 

(marijuana). He contends the court should have granted his motion to suppress 

evidence obtained in a warrantless search of his apartment. The court denied 

the motion, finding the search was valid under the exigent circumstances 

exception. We reverse the decision of the court, finding the State has not met its 

burden to show the evidence was susceptible to destruction, giving rise to an 

exigency, and remand for further proceedings.

I. Background Facts & Proceedings.

On December 10, 2012, at about 10:50 p.m., two police officers received a 

report of a strong odor of narcotics coming from an apartment in Des Moines.1 

When the officers walked inside the apartment building, they could smell 

marijuana, and the odor became stronger as they approached the designated 

apartment. The officers knocked on the door, and James Thielman answered. 

When the door opened, “there was an overwhelming odor of marijuana coming 

from the apartment.” The officers noticed Thielman had red, bloodshot, watery

eyes. He appeared to be under the influence of marijuana or alcohol. Thielman 

was verbally aggressive and yelled obscenities at the officers.

The officers were not able to see into the apartment past Thielman. They

stepped into the living room of the apartment, where they saw a glass jar

containing marijuana. They also saw a large water bong used for smoking 

marijuana, which appeared to have just been used. The officers did not have 

 

1 One of the officers had responded to similar reports of marijuana use at this apartment 

in the past, but on those occasions when officers knocked at the door, no one answered.
3

any information that there might be other people in the apartment but conducted 

a sweep to see if anyone else was there. The officers found two people in a 

bedroom. No one claimed ownership of the marijuana.

Thielman was charged with possession of a controlled substance 

(marijuana), in violation of Iowa Code section 124.401(5) (2011). He filed a 

motion to suppress, claiming officers should have obtained a search warrant 

before entering the apartment. The State argued the search was reasonable 

under the exigent circumstances exception to the warrant requirement because 

there was a risk the marijuana could have been concealed or destroyed before 

officers obtained a search warrant. At the suppression hearing, evidence was 

presented as outlined above.

The court determined that based on the strong smell of marijuana coming 

from the apartment, officers had probable cause to believe an illegal drug was 

present. The court found, “[t]he marijuana was susceptible to destruction giving 

rise to exigency.” The court also noted Thielman’s demeanor added to the 

exigency of the situation. The court denied the motion to suppress.

Thielman waived his right to a jury trial, and the case proceeded to a trial 

before the court based on the minutes of evidence. The court determined there 

was sufficient evidence to find Thielman had constructive possession of the 

marijuana. Thielman was convicted of possession of a controlled substance 

(marijuana). He was sentenced to 180 days in jail, assessed a fine, and placed 

on probation. Thielman now appeals his conviction.
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II. Motion to Suppress.

Thielman contends the court should have granted his motion to suppress,

claiming the officers’ entry into his apartment violated the Fourth Amendment.2 

He asserts the factual situation in this case does not support a finding of exigent 

circumstances. He argues one of the officers could have stayed at the apartment 

while the other left to obtain a warrant.

We review constitutional issues de novo. State v. Lowe, 812 N.W.2d 554, 

566 (Iowa 2012). “This review requires us to make an independent evaluation of 

the totality of the circumstances as shown by the entire record, including the 

evidence presented at the suppression hearings.” Id. Because the court has the 

opportunity to evaluate the credibility of witnesses, we give deference to the 

court’s factual findings but are not bound by them. Id.

In general, officers need a warrant in order to search a person’s home. 

State v. Watts, 801 N.W.2d 845, 850 (Iowa 2011). There are certain exceptions 

to the warrant requirement, however, including a search based on probable 

cause coupled with exigent circumstances. Id. Our supreme court has stated:

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.”

 

2

Thielman states the search violated the United States and Iowa Constitutions but does 

not make a separate argument regarding the Iowa Constitution, and therefore, we will 

not address the issues in this case under the Iowa Constitution. See State v. Wilkes, 

756 N.W.2d 838, 842 n.1 (Iowa 2008).
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Id. (citations omitted). The State has the burden to prove by a preponderance of 

the evidence that an exception is applicable. State v. Naujoks, 637 N.W.2d 101, 

107-08 (Iowa 2001). A claim of exigent circumstances must be supported by 

specific, articulable grounds. Watts, 801 N.W.2d at 851. “The exigentcircumstances exception is important to narcotics investigations because drugs 

are ‘easily destroyed.’” State v. Kern, 831 N.W.2d 149, 174 (Iowa 2013) (citation 

omitted).

The United States Supreme Court has determined the exigent 

circumstances exception is not applicable “when the underlying offense is 

extremely minor.” Welsh v. Wisconsin, 466 U.S. 740, 753 (1984) (“[A]n important 

factor to be considered when determining whether any exigency exists is the 

gravity of the underlying offense for which the arrest is being made.”). The 

United States Supreme Court made a further distinction in Illinois v. McArthur, 

531 U.S. 326, 336 (2001), between offenses that were “jailable” and those that 

are “nonjailable.” 

In Iowa, first offense possession of marijuana is punishable “by 

imprisonment in the county jail for not more than six months or by a fine of not 

more than one thousand dollars, or by both such fine and imprisonment.” Iowa 

Code § 124.401(5). Thus, in Iowa the exigent circumstances exception may 

apply because possession of marijuana is a jailable offense. See State v. Legg,

633 N.W.2d 763, 773 (Iowa 2001) (finding the exigent circumstances exception 

applied when the underlying offense was punishable by up to one year in jail). 

The application of the exigent circumstances exception in relation to the 

smell of raw marijuana was discussed in Watts, 801 N.W.2d at 850-52. Police 
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officers received a report a person was selling marijuana from a certain 

apartment, and when they approached the apartment, the officers noticed “a 

strong smell of raw marijuana.” Watts, 801 N.W.2d at 849. Alan Watts answered 

the door and “an overpowering odor of raw marijuana wafted out of the 

apartment.” Id. The officers handcuffed Watts and detained him in the hallway. 

Id. The officers entered the apartment, where they observed marijuana. Id. The 

Iowa Supreme Court determined the search of the apartment was not valid under 

the exigent circumstances exception because Watts was detained outside the 

apartment, the officers had no information anyone else was in the apartment, and 

therefore, the record did not support an inference drugs were likely to be 

destroyed.3 Id. at 851.

The State asserts the factual situation in Watts is distinguishable from the

present case because this case involves burnt marijuana, not raw marijuana.4 

The State contends the smell of burning marijuana presents an exigent 

circumstance because it means the marijuana is being destroyed as it burns.5

 

3 After entering the apartment and observing marijuana, the officers then obtained a 

search warrant. Watts, 801 N.W.2d at 849. The Iowa Supreme Court determined the 

search warrant would have been issued based on the smell of marijuana alone. Id. at 

854. Because the officers would have found the marijuana after executing the search 

warrant, Watts’s convictions were upheld. Id. at 856.

4 The officers did not explicitly testify that what they smelled was burnt marijuana. The 

only raw marijuana involved in this case, however, was inside a glass jar. In stating 

reasons why it appeared the bong had just recently been used, an officer cited the 

strong odor in the apartment and dirty water in the bong, which leads to the logical 

conclusion that what the officers smelled was burnt marijuana resulting from the use of 

the bong.

5 The State asks us to consider cases from other jurisdictions. We first note that 

because possession of marijuana is not a jailable offense in every jurisdiction, or even 

an offense at all in some jurisdictions, the cases from some other jurisdictions are not 

relevant to our discussion based on the holding in Welsh, 466 U.S. at 753. Additionally, 

the Seventh Circuit has recently noted that on the issue of whether the odor of burning 

marijuana established an exigency, “federal and state courts have been all over the map 
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The United States Supreme Court discussed the issue of exigent 

circumstances in relation to the odor of a burning controlled substance in 

Johnson v. United States, 333 U.S. 10, 12 (1948), where police officers smelled 

burning opium in the hallway of a hotel. After the officers knocked, the defendant 

opened the door, and the officers walked into her room, where they conducted a 

search. Johnson, 333 U.S. at 12. The Court held the officers should have 

obtained a search warrant, stating “[n]o evidence or contraband was threatened 

with removal or destruction, except perhaps the fumes which we suppose in time 

will disappear.” Id. at 15. The court concluded, “No reason is offered for not 

obtaining a search warrant except the inconvenience to the officers and some 

slight delay necessary to prepare papers and present evidence to a magistrate.” 

Id.

An Iowa case which involved burning marijuana is State v. Ahern, 227 

N.W.2d 164, 165 (Iowa 1975). On approaching an apartment, an officer “smelled 

the distinctive odor of burning marijuana.” Ahern, 227 N.W.2d at 165. After 

knocking on the door with no response, the officer kicked in the door, entered, 

and observed evidence of marijuana use. Id. The court noted there was no 

evidence anyone in the apartment saw the officers approach. Id. at 168. The 

Iowa Supreme Court determined the State had not adequately shown exigent 

circumstances because “there was no probability that, unless taken on the spot, 

 

on this issue.” White v. Stanley, 745 F.3d 237, 241 (7th Cir. 2014) (stating there did “not 

appear to be a universal, or even a majority, approach” to the issue of whether or not the 

smell of burning marijuana established an exigency). We therefore conclude cases from 

other jurisdictions may not provide much practical assistance in our consideration of this 

issue.
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the evidence would be concealed or destroyed since the officer’s presence was 

unknown [before he knocked].” Id.

A similar case is State v. Holtz, 300 N.W.2d 888, 890-91 (Iowa 1981), 

which involved illegal drugs but not marijuana. In investigating a burglary,

officers went to a certain motel room, where they observed illegal drugs through 

a window. Holtz, 300 N.W.2d at 890. One of the officers stated, “it looked like 

defendant ‘was getting ready to inject something into his body.’” Id. at 893. The 

officers knocked, and when someone opened the door, they entered the motel 

room. Id. at 891. The Iowa Supreme Court stated, “[the] defendant’s possible 

use of a drug did not create an urgent need for officers to enter the room to 

prevent destruction of evidence.” Id. at 893. The court noted there was no 

evidence the defendant was aware of the officers’ presence, and thus there was 

no evidence the defendant would have felt a sense of urgency to destroy the 

drugs. Id.

We determine that based on Iowa precedent, the State has not met its 

burden to show the warrantless search of Thielman’s apartment was justified by 

the exigent circumstances exception. See Naujoks, 637 N.W.2d at 107-08. The 

State has not presented any evidence to show it was probable the evidence 

would have been destroyed “on the spot” if the officers had not entered the 

apartment. See State v. Jackson, 210 N.W.2d 537, 540 (Iowa 1973) (“Exigent 

circumstances sufficient to justify a search and seizure without a warrant usually 

include . . . the probability that, unless taken on the spot, evidence will be 

concealed or destroyed.”). At the time the officers walked up to the apartment,

the only circumstance that was present was the smell of burning marijuana. 
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Thielman was inside and unaware of the presence of the officers before they 

knocked. In Holtz, 300 N.W.2d at 893, the Iowa Supreme Court found, “[the] 

defendant’s possible use of a drug did not create an urgent need for the officers 

to enter the room to prevent destruction of evidence.” The court cited the use of 

marijuana in Ahern and concluded, “Exigency cannot be found on this basis.” 

Holtz, 300 N.W.2d at 893. Thus, we believe the smell of burning marijuana alone 

did not create an exigency in this case.

The State has not asserted specific and articulable grounds, beyond the 

smell of burning marijuana, to show it was probable evidence would be 

concealed or destroyed if the officers waited to obtain a search warrant. See 

Watts, 801 N.W.2d at 851. After walking up to the apartment and smelling a 

strong odor of burning marijuana, the officers could have obtained a search 

warrant on that basis alone. See id. at 854. At that point, there would have been 

ample opportunity to obtain a search warrant; someone could have been posted 

outside the door to guard against escape or the destruction of evidence. See 

Latham v. Sullivan, 295 N.W.2d 472, 478 (Iowa Ct. App. 1980). There was no 

evidence, as in Kentucky v. King, 131 S. Ct. 1849, 1854 (2011), that people were 

moving around inside the apartment, which would lead to a belief evidence was 

being destroyed. Also, officers had no information anyone was in the apartment 

who could have destroyed evidence. See Watts, 801 N.W.2d at 851.

We conclude the court should have granted the motion to suppress. We 

reverse the decision of the court and remand for further proceedings.

REVERSED AND REMANDED.