Kansas Supreme Court says officers detecting smell of raw marijuana had probable cause to search Douglas County home

photo by: Associated Press

Justices return from recess during hearings before the Kansas Supreme Court in Topeka, Kan., Thursday, May 4, 2017. (AP Photo/Orlin Wagner)

The smell of raw marijuana, when combined with other circumstances, can give police probable cause to search a residence, the Kansas Supreme Court ruled Friday in a case originating in Douglas County.

The court ruled 4-3 to uphold the conviction of Lawrence C. Hubbard, who was arrested in December 2013 on misdemeanor marijuana and paraphernalia charges.

According to court documents, Lawrence police officers testified that they smelled the strong odor of raw marijuana (as opposed to dried and cured) as they stood near Hubbard’s apartment door while questioning him about another matter. Police told the people inside the apartment to leave, and they applied for a search warrant. The police did a security sweep in the apartment to preserve evidence, then waited for a judge to issue the warrant. During the execution of that warrant, police found 25 grams of raw marijuana in a plastic container inside a safe, a small amount of marijuana on a partially burnt cigarillo in the living room, and several clean bongs with no marijuana residue.

Hubbard moved to suppress the evidence on the theory that the officers were not experts and could not smell raw marijuana from the doorway and hence lacked probable cause for the search. Douglas County District Judge Peggy Kittel disagreed and allowed the evidence, citing the officers’ expertise in detecting marijuana odor.

Hubbard was convicted and appealed. The Kansas Court of Appeals affirmed the lower court decision, and a sharply divided Supreme Court on Friday agreed.

The majority opinion, written by Justice Dan Biles, noted that the smell of marijuana by a trained police officer has long constituted probable cause to search a vehicle, and it applied that same principle to searching residences. In rejecting the argument that officers needed to be qualified as experts, Biles wrote: “We are not dealing with sommeliers trying to identify a white wine as a Loire Valley Chenin Blanc.”

The dissent, written by Justice Carol Beier, and joined by Justices Eric Rosen and Lee Johnson, agreed with Hubbard that the officers needed to be qualified as expert witnesses.


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