The Kansas Supreme Court has finally given us some guidance for when officers detect the odor of marijuana coming from a residence. The issue has been muddy for years.
During an arrest warrant investigation, officers contacted Lawrence Hubbard at his apartment. When Hubbard opened the door and stepped outside, officers detected the “strong odor of raw marijuana emanating from the apartment.” Through open window blinds, officers noticed five to seven people in the apartment. When Hubbard again opened the door to re-enter the apartment, the odor was again present. Hubbard closed the open window blinds. Officers decided to seek a search warrant and ordered everyone in the apartment to leave. No one was searched as they left, but officers noted that they did not smell marijuana on anyone as they departed.
Officers then secured the apartment awaiting a search warrant. As a part of that security effort, a physical sweep of the apartment was done to make sure that no one else was present, and the sweep was confined to only those places where a person could hide. During the sweep, officers saw drug paraphernalia in plain view. A search warrant was obtained and during its execution, officers found a small amount of marijuana and seized the earlier-noticed paraphernalia. Hubbard was charged with misdemeanor possession. He asked the trial judge to suppress the evidence arguing: 1) the odor of marijuana coming from a private residence, standing alone, does not amount to probable cause; 2) the protective sweep was unnecessary and therefore illegal; and, 3) when officers testify about recognizing the odor of marijuana, they should have to qualify as experts and not just testify based upon their training and experience. After a hearing, the trial judge said no. The Kansas Court of Appeals later said no. Last week, a divided Supreme Court (4-3) also said no.
MJ Odor and Probable Cause: “Probable cause can be established if the totality of the circumstances indicates there is a fair probability that the place to be searched contains contraband or evidence of a crime.” In odor cases, those circumstances include, but are not limited to: 1) proximity to the odor’s source; 2) reported strength of the odor; 3) experience identifying the odor; 4) elimination of other possible sources of the odor; and, 5) the number of witnesses testifying to the odor’s presence.
But, importantly, the Court warned us, “[t]his is ultimately a case-by-case determination based on the circumstances. Not all cases relying on odor will have the same result.” So, remember that houses are just different and probable cause for a house warrant will assuredly receive a more critical review.
Protective Sweep/Exigent Circumstances: A “protective sweep” of a house or other building is a Fourth Amendment search, and it requires consent, a search warrant, or a recognized exception to the warrant rule. There are two kinds of protective sweep exceptions, and both are based in part upon “exigent circumstances.”
The first is for officer safety: a protective sweep is proper during an arrest when it is reasonable to believe that there may be other persons present who could be an immediate danger to the officers.
The second is when officers reasonably believe that before a search warrant can be obtained evidence will be destroyed or concealed. Hubbard’s situation involved this second type of sweep.
Courts analyze the existence of exigent circumstances by looking at the following factors: 1) the time needed to secure a search warrant; 2) the reasonableness of the officers’ belief the evidence may be immediately lost; 3) potential danger to the officers guarding the site while awaiting a search warrant; 4) whether those persons with possession of the evidence are aware of the officers’ presence; and, 5) the ease with which the evidence might be destroyed or hidden.
Here, the Court agreed that because there was probable cause to believe marijuana was in the apartment and because marijuana is easily disposed of, officers properly swept the apartment for other unknown persons who could have destroyed or hidden the evidence. Also, because the officers were performing a proper sweep, their legal presence in the apartment allowed them to legally see in plain view the drug paraphernalia, and to later note that in the search warrant affidavit.
Officer Testimony About Odor: This was really the main disagreement between the justices. The question was: when an officer testifies that based upon his or her training and experience the odor the officer detected was marijuana: is that statement a fact or an opinion? And, if its an opinion, is it a lay opinion or an expert opinion?
Generally, a lay witness’s opinion should not be based upon scientific, technical or other specialized knowledge. Here, the Court’s majority held that “in this instance we are confident it is within the realm of common human experience to smell something and subsequently be able to recognize that same odor again, e.g. alcohol, gasoline, freshly baked bread, recently cut grass, and so on.”
So, the Court found that an officer’s odor-identification testimony is an opinion but it is a lay opinion. And, for these purposes, that is sufficient.