Smell of Marijuana Didn't Give Exigent Circumstances

Iowa case law summary by Attorney Richard Clem: criminal law, exigent circumstances.

State of Iowa v. James R. Thielman. Criminal law, exigent circumstances

On December 10, 2012, police received a call reporting a strong odor of narcotics coming from a Des Moines apartment. Two officers responded and could smell marijuana. As they approached one apartment, the smell got stronger, and they knocked on the door. James Thielman answered the door, and there was an "overwhelming odor of marijuana coming from the apartment." Thielman had red, bloodshot, and watery eyes and appeared to be under the influence. Thielman was verbally aggressive and yelled obscenities.

The officers stepped into the living room and saw a glass jar containing marijuana and a water bong. They swept the apartment looking for other people, and found two people in a bedroom. Not surprisingly, nobody claimed ownership of the marijuana.

After Thielman was charged with possession of marijuana, he filed a motion to suppress, since the officers had no warrant. The state argued that the search was reasonable under the exigent circumstances exception, since there was a risk that the marijuana could have been concealed or destroyed. Polk County Associate District Judge Carol L. Coppola was left to sort it out. The court denied the motion, and allowed the marijuana to come into evidence. Thielman waived a jury, and was convicted and sentenced to 180 days. Dissatisfied with that turn of events, he appealed to the Iowa Court of Appeals, arguing that the evidence should have been suppressed.

Thielman got a more sympathetic ear from the appeals court, which first noted that, in general, officers need a warrant to search a person's home. But it also noted that there are exceptions, one of which is in the case of exigent circumstances. And one exigent circumstance is when the evidence is at risk of being destroyed.

But the appeals court pointed to the U.S. Supreme Court decision in Welsh v. Wisconsin, 466 U.S. 740 (1984), which held that the exigent circumstances exception does not apply when the underlying offense is "extremely minor."

The appeals court examined this and other precedents and concluded that the state in this case had not met its burden of showing exigency, especially since there was no indication that the evidence was going to be destroyed "on the spot." For these reasons, the Court of Appeals reversed the conviction and remanded the case back to Polk County.

The defendant was represented on appeal by Des Moines attorney Gerald B. Feuerhelm.

No. 13-1218 (Iowa Ct. App. July 16, 2014)

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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