Friday, August 19, 2011

Smell of Marijuana and Probable Cause

It is not uncommon for police officers to claim that they "immediately detected a strong odor of marijuana" coming from the vehicle, apartment or house. They then use that in an attempt to justify a subsequent search of the car or residence. This begs the question: does the smell of marijuana, standing alone, create probable cause to search? The answer is "yes but ..."

According to the Iowa Supreme Court's recent decision in State v. Watts, the odor of marijuana, burnt or fresh, may create probable cause to search a particular location so long as a few requirements are met. First, the State is required to establish that the odor is sufficiently distinctive to identify a forbidden substance and second, the they must establish the training and qualifications supporting the officer's conclusion that the odor was indeed marijuana. In other words, they have to prove that the officer has sufficient training and knowledge to allow him to accurately and reliably detect and identify the odor as being from marijuana. Establishing prior experience in narcotics enforcement investigations is ordinarily sufficient.

These requirement are based upon the United States Supreme Court's decision from 1948 in Johnson v. United States where the Court stated: "If the presence of odors is testified to before a magistrate and he finds the affiant qualified to known the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant." Johnson v. United States, 333 U.S. 10, 13 (1948). The Iowa Supreme Court has followed that reasoning and in State v. Watts, reconfirmed those requirements.

If the State can establish the required foundation pertaining to the odor of marijuana, probable cause is shown to exist. The next question then becomes was a warrant obtained or was the search conducted without a warrant. If a search warrant was obtained, the application for the search warrant must contain sworn information regarding the officers qualification and experience in detecting the odor or the search warrant will not be valid. The prosecution is not allowed to add to the warrant application or present additional evidence that is not contained in the warrant application once the warrant is approved. What's written in the application at the time it is submitted to the judge or magistrate will determine whether or not probable cause has been established.

If the officers proceed to search without a warrant, they must be able to prove that an exception to the search warrant requirement existed. The most common exceptions are: 1) exigent (emergency) circumstances, such as the immediate threat of evidence destruction; 2) consent; 3) search incident to arrest; or 4) plain view. In most cases law enforcement will attempt to rely upon either emergency circumstances or consent. Remember, a person is NEVER required to consent to a search of their person or property. For more information on your rights pertaining to searches, click here.

Emergency circumstances automatically exist when the smell is coming from a vehicle. Right or wrong, the Supreme Court has held that the inherent mobility of a vehicle creates the danger that the evidence will be destroyed or otherwise dissapear if the vehicle is not searched. For apartments, houses or other residences, the State must establish particular facts that reasonably lead them to conclude evidence is in imminent danger of being destroyed before they may proceed to enter a house without a search warrant. In Watts, the prosecution attempted to argue that the officer was justified in entering the apartment without a warrant "because he didn't know if there were any other individuals inside the residence" that could attempt to destroy evidence. The Iowa Supreme Court said that it is not enough "not to know." Rather, there must be specific information that reasonably leads the officers to believe there are individuals inside the residence that pose an immediate threat of destroying the evidence. Hearing movement and scurrying around within the residence may be sufficient to meet that burden.

In conclusion, the smell of marijuana detected by a trained and qualified individual who is shown to be familiar with the odor, can create probable cause to search. However, it is important to ensure that the proper foundation for that evidence is established. It is equally important to ensure that those facts are sufficiently set forth in the search warrant application or if no search warrant was obtained, that the State can meet its burden of proving that an exception to the warrant requirement existed at the time of the search. It is the seemingly little details that can make a huge difference in search and seizure cases.

KNOW YOUR RIGHTS, EXERCISE YOUR RIGHTS, PRESERVE YOUR FREEDOM.

1 comment:

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