Posted on January 8, 2019
Marijuana Odor Can Justify Probable Cause
State v. Hubbard, No. 113,888 (Kan. Dec. 7, 2018)
Issue: Can marijuana odor supply probable cause?
Answer: Yes, based on the totality of the circumstances including: proximity, strength of odor, the investigating officer’s experience, etc.
Facts: An officer approached someone she believed to be suspicious and knocked on his door to question him. The officer “smelled a strong odor of raw marijuana emanating from the apartment.” She then applied for a warrant, demanded everyone leave the apartment, and conducted a security sweep of the apartment. During the security sweep (justified under the “exigent circumstances” exception to the warrant requirement), an officer found a gun, a locked safe, and drug paraphernalia. After the warrant was granted, the officers re-entered the apartment and found 25.07 grams of marijuana.
Discussion: A distinct odor, indicative of contraband or illegal substances, can supply probable cause based on the totality of the circumstances. Courts should evaluate the “proximity to the odor’s source, reported strength of the odor, experience identifying the odor, elimination of other possible sources of the odor, and the number of witnesses testifying to the odor’s presence.”
On the same day, the Court decided another case on the same grounds. See State v. Regelman, No. 116,398 (Kan. Dec. 7, 2018).
Taylor v. United States, 286 U.S. 1 (1932) (upholding probable cause based off of a scent).