The Kansas Supreme Court has just given cops a pass to treat residents' homes like cars on public roads. Being in a car greatly diminishes your Fourth Amendment protections and many a warrantless search has been salvaged by an officer (or a dog) testifying they "smelled marijuana" before tearing the car apart.
Unlike a car on a public road, a person's home has traditionally been given the utmost in Fourth Amendment protections. The bar to search a home is higher than the bar to search a vehicle. Cops aren't supposed to be walking up to windows to peek inside. Nor at they supposed to hang out by the door, hoping to catch a whiff of something illegal.
But that's exactly what they'll be able to do now. If they can find a reason to approach someone's home, all they need to do is declare they smelled marijuana to get past the front door without a warrant. This completely subjective form of "evidence" can be used as probable cause to effect a warrantless search.
The stupefying opinion [PDF] opens with an equally-stupefying bit of exposition:
While on routine surveillance at a local convenience store, Lawrence Police Officer Kimberly Nicholson checked a vehicle's license plate. That records check indicated the car had been stopped several weeks earlier with Irone Revely driving. It was noted there was an active arrest warrant for Revely's brother, Chayln Revely. Nicholson confirmed Irone was the driver, and she believed the passenger matched Chayln's description.
Nicholson followed the vehicle, looking for a traffic violation that would permit a vehicle stop and might allow the officer to confirm the passenger's identity. No violation occurred, so Nicholson followed the vehicle to an apartment complex. The passenger got out and ran into an apartment. Irone trailed behind. Nicholson approached and asked Irone if the person who ran into the apartment was his brother. Irone did not answer and continued walking toward the apartment with Nicholson following.
I'm still trying to wrap my mind around the phrase "routine surveillance at a local convenience store" that's just casually dropped into the opening of the opinion as if that collection of words made any sort of sense. Is this how we're spending our law enforcement dollars? Hanging out by local businesses and running plates? It seems, at best, incredibly inefficient.
That being said, the 7-11 stakeout (or whatever) led Officer Nicholson to the door of Lawrence Hubbard's apartment. That's when the law enforcement magic happened:
Nicholson later testified she was about 2 feet from the front door when Hubbard exited. She further testified she "smelled a strong odor of raw marijuana emanating from the apartment." The officer questioned Irone and Hubbard about the smell. Hubbard denied smelling anything and said his lawyer told him humans cannot detect a marijuana odor.
(That last sentence is equally stupefying. Marijuana does have an odor. That being said, that odor is not always present when an officer claims it is. See also: every search predicated on the smell of marijuana that fails to turn up any marijuana.)
More officers had arrived by that time and decided they might need a warrant. The officers told everyone present to leave until the apartment could be searched. Three officers, including Nicholson, performed a "security sweep" to make sure everyone had left. During this sweep, officers saw drug paraphernalia, a gun, and a locked safe. The warrant arrived and the safe was pried open, resulting in the discovery of 25 grams of marijuana.
Now, let's look at Officer Nicholson's claim:
Nicholson said she "smelled a strong odor of raw marijuana emanating from the apartment."
Here's what was found:
[O]fficers pried open the safe and found 25.07 grams of raw marijuana inside a Tupperware container…
So, from two feet outside the doorway, Officer Nicholson smelled raw marijuana located in Tupperware container inside a locked safe inside a bedroom inside the "back bedroom" closet. That's the story she stuck with, which seems facially unbelievable given the facts of the case.
Whatever, says the Kansas Supreme Court. Officer Nicholson was declared credible, given her past nasal expertise. The same with the other officer, who also smelled raw marijuana through the Matryoshka-esque layers shielding the contraband from random apartment visitors.
Among its factual findings, the court concluded: (1) Nicholson had "detected the smell of raw marijuana 200 to 500 times and burnt marijuana 100 to 300 times" in her law enforcement training and professional experience; (2) when Hubbard came out of his apartment, closing the door behind him, both Nicholson and Ivener could smell what they identified as the odor of raw marijuana coming from the apartment; (3) Ivener testified the smell was "potent" and "overwhelming…"
LOL at "overwhelming." One burnt cig and 25 grams in a locked safe inside a sealed Tupperware container. Officer Ivener is more bloodhound than human and is obviously credible as fuck. This third attempt to suppress the evidence fails because the state Supreme Court says assertions that cannot be proven are all that's needed to waive probable cause search requirements. If an officer claims to smell marijuana, the exigent circumstances exception to the warrant requirement kicks in. After all, preventing someone from flushing weed down the toilet is more important than ensuring the rights of the policed.
[W]e agree with the panel that the probable cause plus exigent circumstances exception permitted the warrantless sweep. Therefore, to the extent the paraphernalia evidence and the search warrant were fruits of a warrantless search, the sweep was not illegal and the challenged evidence is not subject to exclusion.
The sound you hear accompanying this sentence is the Constitution being run through the shredder like Banksy artwork:
We hold that the totality of the circumstances surrounding a law enforcement officer's detection of the smell of raw marijuana emanating from a residence can supply probable cause to believe the residence contains contraband or evidence of a crime.
There's all officers need to obtain a warrant. And since you can't have anyone destroying the evidence you claim you smell while you're waiting for a warrant, you get a free warrantless peek.
The panel focused on the second, fourth, and fifth Dugan factors. Under the second, the court highlighted Ivener's testimony that he did not know how many people had been in the apartment originally and whether they all left, so the officers could not know whether everyone was out. This weighs in the State's favor. Under the fourth factor, the panel noted there was evidence the occupants were aware of the officers' presence, so this also weighs in the State's favor because it demonstrates anyone staying behind would be alerted to the likelihood of an impending search.
The dissent says the lower court did not do enough to vet the officers' claims about their ability to identify the odor of raw marijuana a few dozen feet away from where it resided inside a sealed container inside a locked safe. It points out that if officers want to be considered experts on the odor of marijuana, they should be treated as expert witnesses when testifying. Instead, the lower court accepted their claims of expertise (the hundreds of past marijuana odor sniffs) but then decided they should only be held to the same standard as a lay person giving non-expert testimony. From the dissent:
The officers in this case were not testifying as mere lay persons. On the contrary, they specifically stated that the origin of their ability to smell and identify the source of their olfactory perception as raw marijuana stemmed from their brief exposure to the identified odor during their study at one or more police academies, followed by their experience with numerous cases in which they had successfully detected the substance. This uncontroverted dependency between the officers' training and experience on the one hand and the opinions they expressed on the other hand qualified their testimony about detecting the strong, potent, or overwhelming odor of raw marijuana as expert opinion testimony.
As urged by the defense, the science, if any, behind the officers' apparently sincere belief in their professed ability to detect an odor of raw marijuana should have been subjected to vetting under the rule of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), which is now codified in subsection (b). The officers' expert opinion testimony should have been admitted on the critical issue of the existence of probable cause at the time of the sweep of the apartment only if "(1) [t]he testimony [was] based on sufficient facts or data; (2) the testimony [was] the product of reliable principles and methods; and (3) the witness[es] ha[d] reliably applied the principles and methods to the facts of the case." K.S.A. 2017 Supp. 60-456(b). The district judge erred by failing to exercise her gatekeeping function under subsection (b).
This would have given the defendant a chance to raise a Daubert challenge during trial, which could have resulted in the lower court finding in his favor on the unconstitutional search argument. Rather than officers simply saying "Oh, I've smelled weed a lot and also this time," they'd actually have to provide some evidence of their claims. Is there anything "scientifically valid" about claiming to have experienced the "overwhelming" odor of raw marijuana safely ensconced in a goddamn safe? Probably not. But we'll never know because Kansas courts won't apply that standard. And the state's courts will never have to apply the standard because the top court has stated it's now OK for cops to rescue a warrantless search simply by saying they smelled something illegal.