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State v. Hughes3/17/2000
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. Allowing law enforcement officers to gauge the severity of an offense by considering the entire penalty scheme for a range of related offenses sets a dangerous precedent. Any offense that is included in a scheme of graduated penalties would thereby be rendered serious. This rationale would even include the first offense of driving while intoxicated (DWI) at issue in Welsh, because a subsequent DWI would impose stricter penalties and a potential incarceration period of one year. 466 U.S. at 746.
. The Welsh Court, however, explicitly rejected a focus on heightened penalties and repeat offenses without knowledge of the defendant's prior arrests or convictions. Indeed it is rather ironic that the defendant in Welsh was actually a repeat offender and yet the Court specifically required police to presume a first offense without further knowledge of his repeater status. However, in this case, Hughes had no prior criminal history and yet the majority sanctions the presumption of repeater status as well as an intent to deliver marijuana. This the majority cannot do.
. Several courts have faithfully adhered to the Welsh limitations on warrantless entries into the home. See e.g., Holland, 2000 WL 92231 at *6-*7; Wagoner, 966 P.2d at 182; State v. Ramirez, 746 P.2d 344, 347 (Wash. Ct. App. 1987); State v. Curl, 869 P.2d 224, 226-27 (Idaho 1993). These courts have not encountered difficulty in applying Welsh to invalidate warrantless searches based on the destruction of evidence of first offense or simple marijuana possession. Furthermore, they have done so without resort to an examination of the entire penalty scheme for marijuana possession or the intent to deliver marijuana.
. In recognizing the first offense of drunk driving at issue in Welsh as "relatively minor," the United States Supreme Court was addressing the legal, not societal, consequences of the offense. Likewise, recognizing first offense marijuana possession as minor addresses the legal status of that offense.
. Both drunk driving and illegal drug use represent blights on our communities. Yet, the United States Supreme Court has refrained from allowing moral judgments to obscure the legal reality that in the battle against drunk driving, some violations lie on the lower end of the spectrum of gravity. The same is true for the war on drugs. The Court has mandated that only exigent circumstances in serious offenses excuse a warrantless entry in the home.
. Consistent with the United States Supreme Court directive, the majority should be unwilling to sacrifice the sanctity of the home and be wary of so easily diluting our constitutionally guaranteed freedom from warrantless entry. Today's decision relaxes without justification the protections of the Fourth Amendment and allows exigent circumstances to be the rule rather than the exception. Because the majority casts aside controlling precedent and upholds a constitutionally infirm search, I dissent.
. I am authorized to state that CHIEF JUSTICE SHIRLEY S. ABRAHAMSON and JUSTICE WILLIAM A. BABLITCH join this dissenting opinion.
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