Search and Seizure

Kansas Supreme Court Says Cops Can Search Your Home Without a Warrant If They Claim It Smells Like Pot

Cops supposedly smelled 25 grams of pot inside a plastic container inside a safe inside a closet 30 feet from a guy's doorstep.

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JZS

Five years ago the U.S. Supreme Court refused to endorse a principle that could have allowed any cop with a dog to search any home. The court ruled that deploying a drug-detecting canine at the doorstep of a suspected marijuana grower's house in the hope of obtaining probable cause for a warrant (which requires nothing more than a claim that the dog "alerted") itself constitutes a search under the Fourth Amendment.

But what if a cop without a dog claims his own nose detects marijuana inside a home? In that case, the Kansas Supreme Court recently ruled, the alleged odor provides probable cause for a search, which the cop can execute without waiting for a warrant if he says he was afraid the contraband he thought he smelled might be hidden or destroyed in the interim. In practice, the 4-to-3 decision, issued on December 7, gives police carte blanche to search any home at will.

If you doubt that characterization, consider the dubiousness of the odor that supposedly justified a search of Lawrence Hubbard's apartment. Lawrence, Kansas, police officer Kimberly Nicholson followed Hubbard home after mistaking him for someone with an arrest warrant. As Hubbard exited his apartment to clear up the misunderstanding, Nicholson testified, she "smelled a strong odor of raw marijuana emanating from the apartment." She claimed she was standing about two feet from the front door, while Hubbard said it was more like six or seven feet.

What police ultimately discovered was 25 grams (less than an ounce) of marijuana, which was inside a sealed plastic container, inside a locked safe, inside a bedroom closet about 30 feet from where Nicholson was standing. The cops also found "a small amount of marijuana on a partially burnt cigarillo in the living room," which would have smelled like burnt marijuana, not "raw marijuana" (by which Nicholson presumably meant cured marijuana, as opposed to growing or freshly harvested plants). Another officer, Ronald Ivener, nevertheless testified that he also smelled "raw marijuana" while standing outside the apartment, an odor he described as "potent" and "overwhelming."

You might speculate that Nicholson caught a whiff of the cigarillo as Hubbard opened his door and confused the smell of burnt marijuana with the smell of "raw marijuana." But that hardly seems possible in light of Nicholson's extensive training and experience. "As part of her law enforcement training and while in her official capacity," the trial judge noted, "Officer Nicholson has detected the smell of raw marijuana 200 to 500 times and burnt MJ 100 to 300 times." So either she was exaggerating her ability to distinguish "raw marijuana" from burnt marijuana by odor, or she was asserting a superhuman (and maybe even supercanine) ability to detect Hubbard's triply contained stash from a distance of 30 feet.

Nor was that the only dubious claim that Nicholson made to justify entering Hubbard's home without a warrant. Looking through his window, she said, she saw "five to seven people." She and her colleagues ordered Hubbard's guests to leave. Notably, "the officers testified they did not smell marijuana on anyone as they were leaving," meaning that the source of the "raw marijuana" odor must have remained in the apartment. While waiting for a warrant, Nicholson et al. "did a security sweep to make sure no one remained in the apartment." It was during this "security sweep" that the officers found the cigarillo, along with "several bongs, which were clean and had no marijuana residue." They also noticed Hubbard's safe.

The police argued that the "security sweep" was necessary to protect officer safety and prevent the destruction of evidence. A state appeals court rejected the first rationale, noting that "it is limited to warrantless sweeps incident to a lawful arrest." The court also found that "the officers failed to articulate specific facts that reasonably warranted a belief that anyone in Hubbard's apartment posed a danger to the officers or others." But the appeals court was persuaded by the second rationale, the fear that someone would flush the marijuana that Nicholson and Ivener claim to have smelled down a toilet. The appeals court concluded that the alleged odor provided probable cause to believe a crime had been committed, while "the officers' perceived need to preserve evidence" of that crime constituted an "exigent circumstance" that justified searching the apartment without a warrant.

The Kansas Supreme Court concurred. "We agree with the lower courts that the facts as found by the district court established probable cause to believe contraband would be found inside the apartment," the majority opinion says. "We further hold an exigent circumstance—the need to prevent evidence destruction—supplied an exception to the warrant requirement that permitted the officers to search the apartment for individuals who might have been remaining within it."

After the warrant was issued, the cops opened Hubbard's safe and found what the court describes as "25.07 grams of raw marijuana inside a Tupperware container." Hubbard received two 12-month sentences for possession of marijuana and possession of drug paraphernalia, both misdemeanors, and was granted probation. While we should by no means dismiss the cost of Hubbard's arrest and prosecution, or the lingering collateral consequences of those convictions, the implications of this decision for the privacy of other Kansas residents are at least as troubling, notwithstanding the court's assurances.

"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," the Kansas Supreme Court says. "Such circumstances include, but are not limited to, 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. This is ultimately a case-by-case determination based on the circumstances. Not all cases relying on odor will have the same result."

But if the utterly implausible odor claim in this case provides probable cause, so does any such claim. And if the possibility that evidence will be destroyed, which is always a concern in drug cases, counts as an emergency justifying a warrantless search, no one's home is safe from such invasions.

[Thanks to Walter Olson for the tip.]

NEXT: D.C. vs. the Wide Open West

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  1. Basically renders the 4th Amendment nonexistent.

    1. Look, would you rather have a world where scumbag criminals are protected by legal technicalites like the Constitution, or a world free of the devil’s weed? Because you can’t have both.

      1. I would prefer the former to the latter.

      2. “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” -Benjamin Franklin

      3. “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” -Benjamin Franklin

    2. Probably written on hemp anyway.

      1. Hemp. Yeah, that will be the next case.

        “Dec 20, 2018 ? President Trump signed the 2018 Farm Bill, which legalizes industrial hemp after decades of the crop being caught up in broader cannabis prohibition…”

        1. Some hemp flower looks and smells just like marijuana. The legalization of more hemp products and production should really complicate cases like this (and any case where seeing or smelling cannabis is claimed as probable cause for a search). How do they know they smelled marijuana and not hemp flower? I think to claim the ability to distinguish the two reliably by scent is even more absurd than what they claimed in this case.

          1. I think we’ve established that degree of absurdity is no constraint on the power of our noble men (and women) in blue to make the world safe for people who don’t use marijuana.

            1. Yeah, Which is why I say “should” and not “will”.

    3. Mabel Willebrandt got rid of the 4th Amendment in Marron v. US if memory serves. The 5th was nullified in U.S. v. Sullivan. These are 1924 and 1927 cases, with plenty more where those came from. Mencken nicknamed her the Prohibition Portia, probably as the terror of freethinking jewish organizers of mischief. A lot of time, effort and money goes into ignoring those cases in hopes nobody will make a big stink the way the Liberal Party did in 1931. They had the temerity to write a repeal plank the Dems copied for the 1932 election.

    4. Well, if it doesn’t apply to a dog, why should it apply to a cop?

  2. If for no other reason, this is why MJ should be completely legal.

    1. This is also the reason it probably never will be. Why would the state give up so much power?

      1. “They declared a war on drugs
        Just like a war on terror
        But what it really did was let the police terrorize whoever”

        Killer Mike – “Reagan”

      2. The politicos who see their nationalsocialist buddies lose will repeal laws against cannibalism or murder to keep gubmint paychecks coming to their party. Plant leaves are a lead pipe cinch, and all ya gotta do to make it happen is vote libertarian with 1.4% of the vote total sufficient to decide the issue. That’s how prohibition became a nuisance in the first place… just over 1% of the vote…

  3. Let us hope for an appeal to the supremes who strike this ruling down like the abomination it is.

    1. Waste of time. As long as the Constitution allows general police powers, governments will find ways to abuse them. Squash one outrage here, they’d find a new one.

      The Constitution was a pretty good first effort for such an unseasoned bunch of politicians. But as long as its ultimate accountability rests in a vote every four years, it has no teeth.

      Seems to me the only way to give it teeth is to allow individuals to sue governments for invalid laws, AND for their to be real punishment for enacting and enforcing invalid laws. Absent such teeth, the government will continue accruing power until it eventually collapses from inefficiency, by either rebellion or outside takeover.

      The rebellion I see most likely is the dark web and digital currency moving so much of daily life beyond government reach that eventually government is reduced to a quaint old remnant which has no more meaning to daily life than Latin masses.

      1. While I agree that punishing politicians directly for voting for unconstitutional laws I also don’t see a reason not to play ‘whack-a-mole’ with existing laws. The problem is that we need to shift the costs of such lawsuits on to the losing party which would be the politicians who passed the unconstitutional laws in the first place. Naturally, any politician would need to have some sort of insurance in place should they die in office and have been found to have voted for unconstitutional laws if for no other reason as an attempt to make the offended party whole. It’s the only way to get them to think before they vote, hell it’s probably the only way to get them to even partially read what the fuck they’re voting for in the first place.

        “I didn’t know it was potentially unconstitutional” – “Ignorance is no excuse, bitch!”

        1. Whacking moles is a waste of time; statists only care that everybody can be ensnared, every law you whack inspires new ensnaring replacements, and anything which enrages even 1% of the population will suffice.

          The other inspiration for new ensnaring laws is social and technological changes which provide means of escaping ensnarement. This is why statists constantly rail against the evils of change.

      2. But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.

        – Lysander Spooner

        1. Anarchists denouncing the constitution after contributing to its demise.

          Big surprise.

          1. Denouncing something is usually intended to contribute to its demise.

          2. Spooner did not advocate anarchism. His “No Treason” essay was a direct and specific satirical response to the Income Tax levied to finance the Civil War. Spooner’s famous “Go to A. B. and tell him…” mimics the language of the oath federal revenue looters took as a deterrent to absconding with the tax money extorted from persons robbed under threat of murder. Here is the link showing the exact page of the law, provided by Jon over at the Constitution blog: http://tinyurl.com/ybeufbmq
            To preserve the High Tariff Union, and stop nasty southerners from exploiting brown women and holding quadroon balls (among other peculiar institutions), a lot of money had to be raised. The “anarchism” smear no more applies to Lysander–an antislavery activist–than to David Nolan.

    2. Drug laws are unconstitutional.

      Even prohibitionists knew that you need a constutitonal amendment to ban a product or sevice. In that case alcohol.

      1. Kansas will do everything they can to work around that. Long ago, I was stationed at Fort Riley, and spent a few years living in Kansas. This is not one of their better points.

        1. Depends where. Wichita has a distinct libertarian bent that you won’t find much of elsewhere in the state:

          Wichita Marijuana Decriminalization Initiative

    3. This is the sort of case that makes us regret the passing (probable but uninvestigated murder) of Antonin Scalia. He was absolute death on police in 4th Amendment cases such as this. Maybe Thomas will pick up the banner, it’s hard to say, but this kind of violation of the right to be free of warrantless invasion of the privacy of one’s home is not something that the SCOTUS has sanctioned in the past. One can only hope they will take this case up and kick the Kansas Supremes to the curb.

  4. “As part of her law enforcement training and while in her official capacity,” the trial judge noted, “Officer Nicholson has detected the smell of raw marijuana 200 to 500 times and burnt MJ 100 to 300 times.”

    Citation?

    If nothing else, an expert witness should require some sort of validation of the supposed expertise beyond “Oh, yeah, I totally know my shit.” Maybe stick 10 safes out in the court hallway, one of which contains a Tupperware container of pot and have her identify which safe has the pot?

    It’s the biggest dodge in the kangaroo court business, allowing cops to testify to probable cause “based on my many years experience as a police officer”. Everything under the Sun qualifies as probable cause – driving too slow, driving too fast, driving the exact speed limit, being too neat, being too messy, being just a little messy, being nervous, not being nervous, being nervously casual, making eye contact, not making eye contact, making intermittent eye contact………it’s all bullshit the courts eagerly gobble up.

    1. “or she was asserting a superhuman (and maybe even supercanine) ability to detect Hubbard’s triply contained stash from a distance of 30 feet.”

      This was on Reddit.
      “If pigs have a stronger sense of smell than dogs, and are smarter than dogs, then why don’t police departments use them?
      General Discussion

      Serious replies only, please”

      1. Because pigs like truffles and ‘pigs’ aren’t interested in truffles because it won’t shove a jack up their ass (ie. give them a raise).

        1. D’oh, that’s: (i.e. give them…
          forking isn’t button!

        2. Dogs are used more than pigs for finding truffles.

      2. Pigs do have a stronger sense of smell than dogs. They are also smart and relatively easy to train. However. They are not particularly tenacious and not likely to work a scent indefinitely; they are more curious than anything and are therefore easily distracted. Also, because of their particular physiology, they would have trouble working on very hot or very cold days. So, entertainment value aside, they would not be particularly well-suited to the work.

    2. Makes sense to me, but then I am only a PhD research scientist and not a legal scholar.

    3. “If nothing else, an expert witness should require some sort of validation of the supposed expertise beyond “Oh, yeah, I totally know my shit.” Maybe stick 10 safes out in the court hallway, one of which contains a Tupperware container of pot and have her identify which safe has the pot?”

      Same thing with the supposed drug-sniffing doggies. Let’s see if Spot can find the dope without his handler giving ‘hints’

      1. Like none of us had dogs before. Cannot remember not having one or more around. We know that dogs can be trained to do all kinds of things. It should never be a law enforcement tool to justify a search.

        Why do we let the government get away with this crap?

      2. There is no dispute that a dog can identify narcotic smells, distinguishing between them (eg, can identify cocaine as opposed to heroin) even in minute quantities. This has been tested and proven, and the dog’s “testimony” has been approved for use in court.

        Does the handler give “hints”? Well, the handler can only give hints if the handler knows the answer. Which the handler typically does not know. What the handler will do is encourage the dog to keep working, which is not the same as giving hints. On a track, the handler should have the dog on a very long (25 to 40 foot) leash making the handler unable to exercise specific control. On something like a car the handler is closer, but again cannot direct the dog. Among other things, doing so would completely confound the training. Scent training essentially teaches the dog “planned disobedience”, i.e., to follow its nose without regard to the handler, and the handler has to learn to trust the dog once the dog has learned the basic requirements of tracking (following a track in increasingly complicated patterns, what to do when the dog has identified the target, etc).

        Training a tracking or scent discrimination dog is a long and difficult process, often taking a year or more, and while it is easy to sneer, by and large the work the dogs do is productive and important.

  5. I smell commies in the Kansas Supreme Court.

    1. We all know there’s only one thing a good commie can be….

      1. X-X
        ^

    2. That’s the stench of three Republican-appointed drug warriors on the Kansas Supreme Court. The three Democrat-appointed judges who dissented, and were appointed after most of those Republicans were appointed, provide hope for Kansas’ future.

      1. Rev. Arthur L. Kirkland|12.25.18 @ 6:44AM|#
        “That’s the stench of three Republican-appointed drug warriors on the Kansas Supreme Court.”

        This from a half-educated asshole who shits in the back ‘room’ of his double-wide.
        That stench is YOU, asshole.

  6. Well, you better hope you don’t have a skunk living nearby….

    1. What is the courts stance on person’s with a patchouli oil scent and listening to the Dead? Grounds for roadside strip search and anal cavity search if needed because it could get flushed?

      Better re-gift my MJ scented deodorant to a good friend.

      1. Why do you hate your friends?
        Re-gift it to Pelosi – – – – – –

  7. There are no adequate substitutes for juries and critical thinking.

    1. There are no adequate substitutes for juries and critical thinking except the likelihood of threatening/rioting mobs in opposition to prosecution.

      Must be why cops like bench trials. Juries are a crapshoot nonetheless.

      1. As a defense attorney I had cases where I preferred a bench trial as well. It’s all about tactical choices.

    2. In my experience, juries, like the rest of the players in courtroom drama, are retards. We would be better off with robots.

      1. If youre the holdout, it should be easy to outlast 11 retards.

    3. Prosecutors simply tell defendants to plead “guilty” of plant leaves or face a ku-klux-Kansas jury that’ll send them to the Big House for 25 years over a joint. The trick has worked since the late 1930s.

      1. I dont convict people for drugs when I serve on juries.

        That reminds me, I need to hit up my county jury pool government office to serve on another jury.

      2. KKK in Kansas? Maybe you’re thinking of Missouri. There’s a famous mural of John Brown, abolitionist crusader, located prominently in the Capitol.

        Regardless, 25 years hard time for misdemeanor possession isn’t Kansas, either (did you even read the article? Dude got 2 12-month sentences but goes on probation instead of having to serve it, for a quantity roughly equal to 30 joints).

        Now, if you’re a Wynntard, you might be conflating accessory to homicide with simple possession. Which, it wouldn’t have been simple anyway, since the quantity involved in the drug deal gone bad was felony-level.

  8. It’s already a precedent that if police can see the drugs (like through a window or whatever) they don’t need a warrant. So theoretically, how is that any different from smelling them instead? You are just using one sense instead of the other.

    1. Slaver John Rohan says, “…how is that any different from smelling them instead?”

      Because it is significantly easier to lie about it and be proven false. See case above. How about that?! You must theoretically support gut feelings too, because they are just using a different organ. sarc

      Another reason not to open the door to the police. Them will stick their foot in your door when you try to close it. If Them had an arrest warrant then either let them try to verify it through the closed door (show ID through the glass) or leave out another exit to clear it up so there is no odor or reason to enter.

      FFS Try critical thinking.

    2. If the contraband is visible then it is called “plain view” and it is subject to seizure. The question, however, is whether the police officer had the right to be where he was at the time. The SCOTUS has rejected the argument that a cop has the right to skulk around a house, looking in the windows looking for plain view evidence of a crime where there was no probable cause.

  9. FTFA: “”We are not dealing with sommeliers trying to identify a white wine as a Loire Valley Chenin Blanc,’ [Justice Dan Biles] wrote in the decision.”

    Based upon my training and years of experience, I smell an elitist douche nozzle.

  10. The scary thing about being on probation is that you’re now ‘guilty until proven innocent’. Meaning if he fucks up in some small way or if someone is trying to make trouble for him, he’s facing 2 years in prison. For pot. The movie Blindspotting is not particularly good, but it exposes this dynamic pretty well. This guy is on his last 3 days of probation and is trying to stay out of trouble, but his friend is an instigator. So it gets suspenseful. But yeah that happens all the time that ‘friends’ get you in trouble because just being at the scene of a fight where the police are called can result in an automatic arrest of anyone on probation. So now you just gotta keep a low profile until the probation runs out, which can last for years. Sucks but whatcha gonna do.

  11. What would have happened if the guy just didn’t answer the door? Would the cop have waited for a warrant or just kicked the door down?

    1. That depends on how many flashbangs the cop had on hand and how many babies were sleeping in a crib inside.

      1. Any Republican judge would rule that a justifiable baby-killing, with the Methodist White Terror and Landover Baptist Lobby nodding sagely in the wings. Prohibition is the original License to Kill.

        1. Your partisanship has created willful blindness. Need I remind you that Earl Warren was Republican?

    2. Already had an arrest warrant and if Them believed he was inside then Them will not pass up a chance to bust down a door.

      Just lucky he did not answer the door with a video game controller in his hand.

      https://www.rt.com/usa/ police-georgia-teen-wii-remote-796/

  12. So, knowing some regular pot smokers, they smell like pot, as does their home.

    The interaction is described as follows

    “The cops also found “a small amount of marijuana on a partially burnt cigarillo in the living room,” which would have smelled like burnt marijuana, not “raw marijuana” (by which Nicholson presumably meant cured marijuana, as opposed to growing or freshly harvested plants)”

    He’s an idiot cop. He smelled weed. Presuming he’s a connoisseur who can tell the difference between burnt, raw but cured and raw but uncured is silly. The much more likely scenario is that he smelled weed and did that thing cops do where they describe incidents using words they don’t necessarily need to use to accurately portray the incident. The cop didn’t smell the weed in the safe. He smelled weed and tried to sound smarter than he is.

    Secondarily, if the “cigarillo” (seriously gramps?) was recently prepared, then it may still strongly smell of weed.

    What we almost certainly have here is a cop giving a bad description of the act of smelling weed, and an idiot journalist making stupid aasumptions.

    That said, the smelling weed thing is straight bullshit. The SMELL of weed is not illegal, and so should not be evidence of anything.

    1. The weird part is that six people left the place in the presence of the cops and none of them smelled like weed. Which is virtually impossible if in fact anyone in their presence was smoking.

  13. …but what if your house smells like an outhouse?
    Then what?

  14. Canada might be a socialist hellhole, but since mid-October weed is legal here; no Canuck cop can use the smell of MJ claim to search your house.

    1. …or nationalize it and still leave you liable for the mortgage payments. Remember the Crash of 2008?

    2. They can still shoot you when they smell guns. So there’s that.

  15. “Officer Nicholson has detected the smell of raw marijuana 200 to 500 times and burnt MJ 100 to 300 times.”

    If she burnt marijuana all those times, it may have affected her memory and wiped out all those years of training and experience.

    1. If the case were worth the trouble the defense attorney could subpoena her police department personnel file and verify or dispute those claims. But for two misdemeanors which the attorney probably knew would only lead to probation, it would not be worth it. Defense attorneys focus on getting the best result for their client at the trial court level, not on making law at the appellate level, and that is the way this would have played.

  16. Everyone knows when they’re smelling weed or not, even semi-sentient donut munchers. So it would make sense for it to be probable cause except in a scenario where we had pleasantly strict probable cause rules. Of course I favor such strictness and legalizing all forms of weed use. The underlying farce is worrying about people smoking weed. If everyone were smoking weed and could get it legitimately and easily, I bet tons of actual social ills would vanish.

  17. The Kansasgaroo Suprema Corte no doubt will let the looters nationalize the house through asset-forfeiture sharing–the practice that caused the Crash and Depression in 2008… and 1929! Kansas girl Mabel Walker Willebrandt changed the slope of U.S. stock market graphs with her Aug-Sept syndicated column explaining how tax and prohibition laws joined forces to confiscate homes, ships, vehicles, bank accounts, brokerage accounts and fines of 15 pounds of gold bullion. The German stock market had already crashed in 1927 when Willebrandt got nine dry geezers to nullify the 5th Amendment. That case set the precedent for jailing Al Capone, his brothers and associates–and enough magnates to keep the GOP out of office for 25 years thereafter.

  18. 1st Amendment
    2nd Amendment
    3rd Amendment
    4th Amendment


    1. Where do you think all those troops are going to stay after they leave Syria and Afghanistan?

      1. They’re all staying at yo momma’s house.

      2. In Tonys arse.

        Seriously though. You could park the Republican Guard in there, says Buttplugger.

    2. Reason had an article a few years ago about a violation of the third.

      1. But is the 3rd Amendment the best because it has protected us completely from troop quartering in our houses since 1791 or is it the most unnecessary protection ever?

  19. The appeals court concluded that the alleged odor provided probable cause to believe a crime had been committed, while “the officers’ perceived need to preserve evidence” of that crime constituted an “exigent circumstance” that justified searching the apartment without a warrant.

    Clear the house, secure it, and get a warrant.

    1. Yup. There is no general “crime scene exception”. You detain the principals, clear everyone else from the house, lock it down and get your warrant. Then you go in and search. This was just plain laziness on the part of the policewoman and lame excuses on the part of the courts.

  20. Good thing Cocaine has no smell and Marijuana is moving to become acceptable in every state.

    1. If cocaine has no smell then why does everyone insist on snorting it?

      1. To find the smell…of course.

      2. Probably because it gets them high, rather than for a tantalizing aroma.

    2. It does have an odor that narcotics dogs can detect. It is just not detectable by humans.

  21. That won’t last long. Kansas will either be growing industrial hemp next year, or will be surrounded by much more successful farmers who are.

    1. Legalizing the growing of industrial hemp will have no effect on legalization of recreational cannabis.

  22. In other news it has recently been discovered every single home and business in Kansas smell like Pot.

  23. On page 7 the decision states that one of the officers was no mere “lay person”, but a trained expert. The very next page it says that the officers were laymen, not experts in the eyes of the law. Maybe the inconsistency is one of the unfortunate consequences of having a pre-decided outcome rather than an underlying judicial philosophy.

    1. A police officer can be trained to some level of expertise for purposes of police work, and can testify as such. However, that is not the same as expert testimony. For one thing, the expert cannot also be percipient. The expert must be qualified as such based on educational qualifications and experience, as well as history in court and can be challenged as to the validity of his or her claim to expertise. In that sense, then, for whatever expertise in police work the officers did or did not have, they were legally laymen and not experts in the legal sense of the term.

  24. Why do we continue to pretend we have a constitution?

    “Or the laaaaannnnddd of the free….”….has become such a laugh line.

  25. As long as pot is still illegal I don’t think this ruling is over the top. I mean, if lavender were illegal you’d have pretty good probable cause if you detected a strong scent. Regardless of whether you could see the lavender or not.

    But there ought to be serious penalties for using the smell of pot as a pretext and then not finding some. Granted, that’ll lead to more cops planting dime bags. But that would happen a lot less often than a cop deciding that lying about a smell isn’t worth it any more.

    1. except in this case, the pot was in a sealed Tupperware container inside a locked safe. The claimthat there would have been a detectable odor is absurd.

      1. Not absurd, if you think about it. Unless someone else provided the weed for the blunt, or there was another stash the cops didn’t find, then that pot was out of the safe, lid off container, for long enough to extract the desired quantity. Which, depending on how dank these particular nugs were, may have been long enough to saturate the air in the apartment with the unmistakable stench of “raw marijuana.”

        Also, unless the police searched every single place the grass might have been secreted, then it seems likely there was a strong scent emanating from the safe. However, I think it less likely that the Mary Jane inside the safe could be smelled outside it, and more likely that whoever accessed the safe most regularly did so to retrieve the ganja, but inadvertently picked up keef on his fingers, which in turn rubbed off onto the outside of the safe.

        Likely, unlikely? You decide. But either way, not absurd.

  26. Reason # 3145671 of why we should all cheer when a cop is shot in the face .

  27. https://www.adn.com/alaska-news/article/judge- rejects-alaska-state-troopers-dope dope -sniffing-ability/2011/04/23/

    This was a rare, good case.
    Take out the spaces. It says the word was too long. Between – rejects, and – dope.
    I’ll see if that works.

    1. Looks like there’s an extra dope in there for some reason. I haven’t tried it, but probably remove the extra dope too. Good article though.

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  29. I would have to imagine this can be challenged in the SCOTUS, no?

    1. Yes. It raises a Constitutional issue: the 4th Amendment, as to which in this type of case SCOTUS precedent is pretty firmly established.

  30. my whole neighborhood smells like pot thanks to pot growers, can they search every house then

  31. I wonder if they realize they’ve just opened Pandora’s Box? I hope they’re ready for what this brings. Sheer stupidity on display.

  32. “This is ultimately a case-by-case determination based on the circumstances”

    In other words, deference will be given to the police even when it defies logic. I’d like to say this won’t stand, given the dog ruling from the USSC earlier (dogs sense of smell being even more potent), but I won’t hold out hope.

  33. Exigent circumstances should never be code for assuming that someone is guilty without due process. That’s exactly what allowing the potential destruction of evidence exception does. It’s a black mark on the USSC that it remains.

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  35. “SMELLS” like a serious problem with the Kansas Courts.

  36. I spent my first 17 years in a small Kansas town of about 11,000. It still boasts about 50 churches, most of which abhor marijuana as I do. But to empower law enforcement with the ability to brush aside the 4th Amendment based on the biologically defective sense of smell in humans seems prima facie unconstitutional. It smells more of church than marijuana.

    Law enforcement already has enough power to enforce most of the laws and if they miss a few like this one, no harm done. In fact, compared to new laws all over the nation, seems Kansas should allow the use of marijuana in one’s home if no more than half dozen guests are present. Since maturing children have no respect for the drug problem, unlicensed dealing in marijuana and all other controlled substances should be treated as capital crimes.

    1. What else do you want to murder people for if they don’t get a government permission slip to engage in certain economic activities?

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