                    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).
                                           2


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.
                                            4


       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).
                                        5

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 exigent-

circumstances 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
                                           6


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
                                            7


       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.
                                        8


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.
                                           9


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.
