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State v. Hess5/5/2004
ntless Search, 5 ALR 4th 681 (1981). But see Johnson v. United States, 333 US 10, 68 SCt 367, 92 LEd 436 (1948) (smell of burning opium alone cannot create probable cause to effect a warrantless search and arrest).
. On the other hand, many other courts hold that the smell of burning marijuana does not evince a sufficiently grave offense to justify entering a residence without a warrant. These courts rely on the distinction between minor and serious offenses made by the United States Supreme Court in Welsh v. Wisconsin, 466 US 740, 104 SCt 2091, 80 LEd 2d 732 (1984). See State v. Curl, 869 P2d 224 (Idaho 1993), cert. denied, 510 US 1191, 114 SCt 1293, 127 LEd2d 646 (1994); Haley v. State, 696 NE2d 98 (IndCtApp 1998); State v. Beeken, 585 NW2d 865, 872 (Neb 1998) (dictum); State v. Wagoner, 966 P2d 176 (NM CtApp), cert. denied, 964 P2d 818 (NM 1998); State v. Ackerman, 499 NW2d 882 (ND 1993); State v. Robinson, 659 NE2d 1292 (OhioApp 1995); State v. Ramirez, 746 P2d 344 (WashApp 1987).
. To understand the distinction between serious and minor offenses, we must closely examine the Welsh decision, which is binding on us under the Supremacy Clause of the United States Constitution. In Welsh, the Court concluded that the police violated a driver's Fourth Amendment rights by arresting him in his home without a warrant for DUI. The police had claimed that exigent circumstances justified entry into the driver's home to obtain his blood-alcohol level because he had fled the scene of an accident. Id. at 742. As it had on several earlier occasions, the Court emphasized that the "police bear a heavy burden when attempting to demonstrate an urgent need that might justify warrantless searches or arrests." Id. at 749-50. The opinion noted that only "hot pursuit of a fleeing felon," "destruction of evidence," and "ongoing fire" were recognized by the Court as emergency situations justifying a warrantless search or arrest, and that heretofore only the "hot pursuit" doctrine was applied to arrests in the home. Id. at 750. Furthermore, the Court wrote:
Our hesitation in finding exigent circumstances, particularly when warrantless arrests in the home are at issue, is especially appropriate when the underlying offense for which there is probable cause to arrest is relatively minor. Before agents of the government may invade the sanctity of the home, the burden is on the government to demonstrate exigent circumstances that overcome the presumption of unreasonableness that attaches to all warrantless home entries. When the government's interest is only to arrest for a minor offense, that presumption of unreasonableness is difficult to rebut, and the government usually should be allowed to make such arrests only with a warrant issued upon probable cause by a neutral and detached magistrate.
Id. at 750 (citations omitted) (emphasis added). The Court held that an important factor in determining whether an exigency exists is "the gravity of the underlying offense for which the arrest is being made." Id. at 753.
. Unlike marijuana offenses, which are ordinarily misdemeanors, possession of methamphetamine is a felony in South Dakota. SDCL 22-42-5. In South Dakota, law enforcement officers may make a warrantless arrest when they have probable cause to believe that the person to be arrested has committed a felony or a class one misdemeanor. SDCL 23A-3-2 (2). The deputies saw Hess and his companion in possession what they believed to be methamphetamine. Unquestionably, possession of a controlled substance, like methamphetamine, is a serious offense. Cf. Clement, 854 F2d at 1119-20 (8thCir 1988) (citing Welsh, noting the necessity of looking to the gravity of the offense, and characteri
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