                 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.
                                   17

2d 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.
