A ruling by the Kansas Supreme Court could make it easier for police officers to search a home based on what they believe they smell.
In the recent ruling, four of the seven justices said that an officer’s belief she smelled unlit marijuana was probable cause to sweep an apartment in Douglas County and then ask for a search warrant.
The search did uncover marijuana, but an attorney for Lawrence Hubbard argued there was no way officers could have sniffed out the unlit weed out from across the home. He moved to throw out the evidence, saying the search violated his constitutional rights.
The officers called the smell potent and even overpowering, and the prosecution argued the initial sweep was needed to ensure officer safety and guarantee no evidence was destroyed. After that, officers obtained a warrant for a search of the apartment.
The justices pointed to the fact that the officers had been trained in identifying marijuana and had encountered it before. The opinion calls it reasonable to believe the officers could identify marijuana, as it wasn’t something as delicate as a fine wine.
“We are not dealing with sommeliers trying to identify a white wine as a Loire Valley Chenin Blanc,” the opinion reads.
Lauren Bonds, legal director with the ACLU of Kansas, said the justices did a good job applying their reasoning to the situation at hand. However, she suspects the decision could make it easier for police to justify searches of homes.
“Giving police the impression that it’s constitutional for them to do these broad sweeps and searches of homes based on what they believe they smell,” Bonds said in an interview.
Bonds said it will take time to determine if this ruling leads to officers using their nose to justify home searches in Kansas.
Three justices dissented, saying there were too many questions about the ability of the officers to identify the odor of marijuana. They argued that a lower court should have searched for answers to those questions.
“How much raw marijuana must be present in order for a human to be able to detect its odor? How close must the person be to the raw marijuana in order to detect its odor?” the dissenting justices wrote.
Stephen Koranda has more: