Kansas Supreme Court Says Cops Can Search A House Without A Warrant As Long As They Claim They Smelled Marijuana

from the I-love-the-smell-of-exigency-in-the-morning dept

The Kansas Supreme Court has just given cops a pass to treat residents’ homes like cars on public roads. Being in a car greatly diminishes your Fourth Amendment protections and many a warrantless search has been salvaged by an officer (or a dog) testifying they “smelled marijuana” before tearing the car apart.

Unlike a car on a public road, a person’s home has traditionally been given the utmost in Fourth Amendment protections. The bar to search a home is higher than the bar to search a vehicle. Cops aren’t supposed to be walking up to windows to peek inside. Nor at they supposed to hang out by the door, hoping to catch a whiff of something illegal.

But that’s exactly what they’ll be able to do now. If they can find a reason to approach someone’s home, all they need to do is declare they smelled marijuana to get past the front door without a warrant. This completely subjective form of “evidence” can be used as probable cause to effect a warrantless search.

The stupefying opinion [PDF] opens with an equally-stupefying bit of exposition:

While on routine surveillance at a local convenience store, Lawrence Police Officer Kimberly Nicholson checked a vehicle’s license plate. That records check indicated the car had been stopped several weeks earlier with Irone Revely driving. It was noted there was an active arrest warrant for Revely’s brother, Chayln Revely. Nicholson confirmed Irone was the driver, and she believed the passenger matched Chayln’s description.

Nicholson followed the vehicle, looking for a traffic violation that would permit a vehicle stop and might allow the officer to confirm the passenger’s identity. No violation occurred, so Nicholson followed the vehicle to an apartment complex. The passenger got out and ran into an apartment. Irone trailed behind. Nicholson approached and asked Irone if the person who ran into the apartment was his brother. Irone did not answer and continued walking toward the apartment with Nicholson following.

I’m still trying to wrap my mind around the phrase “routine surveillance at a local convenience store” that’s just casually dropped into the opening of the opinion as if that collection of words made any sort of sense. Is this how we’re spending our law enforcement dollars? Hanging out by local businesses and running plates? It seems, at best, incredibly inefficient.

That being said, the 7-11 stakeout (or whatever) led Officer Nicholson to the door of Lawrence Hubbard’s apartment. That’s when the law enforcement magic happened:

Nicholson later testified she was about 2 feet from the front door when Hubbard exited. She further testified she “smelled a strong odor of raw marijuana emanating from the apartment.” The officer questioned Irone and Hubbard about the smell. Hubbard denied smelling anything and said his lawyer told him humans cannot detect a marijuana odor.

(That last sentence is equally stupefying. Marijuana does have an odor. That being said, that odor is not always present when an officer claims it is. See also: every search predicated on the smell of marijuana that fails to turn up any marijuana.)

More officers had arrived by that time and decided they might need a warrant. The officers told everyone present to leave until the apartment could be searched. Three officers, including Nicholson, performed a “security sweep” to make sure everyone had left. During this sweep, officers saw drug paraphernalia, a gun, and a locked safe. The warrant arrived and the safe was pried open, resulting in the discovery of 25 grams of marijuana.

Now, let’s look at Officer Nicholson’s claim:

Nicholson said she “smelled a strong odor of raw marijuana emanating from the apartment.”

Here’s what was found:

[O]fficers pried open the safe and found 25.07 grams of raw marijuana inside a Tupperware container…

So, from two feet outside the doorway, Officer Nicholson smelled raw marijuana located in Tupperware container inside a locked safe inside a bedroom inside the “back bedroom” closet. That’s the story she stuck with, which seems facially unbelievable given the facts of the case.

Whatever, says the Kansas Supreme Court. Officer Nicholson was declared credible, given her past nasal expertise. The same with the other officer, who also smelled raw marijuana through the Matryoshka-esque layers shielding the contraband from random apartment visitors.

Among its factual findings, the court concluded: (1) Nicholson had “detected the smell of raw marijuana 200 to 500 times and burnt marijuana 100 to 300 times” in her law enforcement training and professional experience; (2) when Hubbard came out of his apartment, closing the door behind him, both Nicholson and Ivener could smell what they identified as the odor of raw marijuana coming from the apartment; (3) Ivener testified the smell was “potent” and “overwhelming…”

LOL at “overwhelming.” One burnt cig and 25 grams in a locked safe inside a sealed Tupperware container. Officer Ivener is more bloodhound than human and is obviously credible as fuck. This third attempt to suppress the evidence fails because the state Supreme Court says assertions that cannot be proven are all that’s needed to waive probable cause search requirements. If an officer claims to smell marijuana, the exigent circumstances exception to the warrant requirement kicks in. After all, preventing someone from flushing weed down the toilet is more important than ensuring the rights of the policed.

[W]e agree with the panel that the probable cause plus exigent circumstances exception permitted the warrantless sweep. Therefore, to the extent the paraphernalia evidence and the search warrant were fruits of a warrantless search, the sweep was not illegal and the challenged evidence is not subject to exclusion.

The sound you hear accompanying this sentence is the Constitution being run through the shredder like Banksy artwork:

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.

There’s all officers need to obtain a warrant. And since you can’t have anyone destroying the evidence you claim you smell while you’re waiting for a warrant, you get a free warrantless peek.

The panel focused on the second, fourth, and fifth Dugan factors. Under the second, the court highlighted Ivener’s testimony that he did not know how many people had been in the apartment originally and whether they all left, so the officers could not know whether everyone was out. This weighs in the State’s favor. Under the fourth factor, the panel noted there was evidence the occupants were aware of the officers’ presence, so this also weighs in the State’s favor because it demonstrates anyone staying behind would be alerted to the likelihood of an impending search.

The dissent says the lower court did not do enough to vet the officers’ claims about their ability to identify the odor of raw marijuana a few dozen feet away from where it resided inside a sealed container inside a locked safe. It points out that if officers want to be considered experts on the odor of marijuana, they should be treated as expert witnesses when testifying. Instead, the lower court accepted their claims of expertise (the hundreds of past marijuana odor sniffs) but then decided they should only be held to the same standard as a lay person giving non-expert testimony. From the dissent:

The officers in this case were not testifying as mere lay persons. On the contrary, they specifically stated that the origin of their ability to smell and identify the source of their olfactory perception as raw marijuana stemmed from their brief exposure to the identified odor during their study at one or more police academies, followed by their experience with numerous cases in which they had successfully detected the substance. This uncontroverted dependency between the officers’ training and experience on the one hand and the opinions they expressed on the other hand qualified their testimony about detecting the strong, potent, or overwhelming odor of raw marijuana as expert opinion testimony.

[…]

As urged by the defense, the science, if any, behind the officers’ apparently sincere belief in their professed ability to detect an odor of raw marijuana should have been subjected to vetting under the rule of Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), which is now codified in subsection (b). The officers’ expert opinion testimony should have been admitted on the critical issue of the existence of probable cause at the time of the sweep of the apartment only if “(1) [t]he testimony [was] based on sufficient facts or data; (2) the testimony [was] the product of reliable principles and methods; and (3) the witness[es] ha[d] reliably applied the principles and methods to the facts of the case.” K.S.A. 2017 Supp. 60-456(b). The district judge erred by failing to exercise her gatekeeping function under subsection (b).

This would have given the defendant a chance to raise a Daubert challenge during trial, which could have resulted in the lower court finding in his favor on the unconstitutional search argument. Rather than officers simply saying “Oh, I’ve smelled weed a lot and also this time,” they’d actually have to provide some evidence of their claims. Is there anything “scientifically valid” about claiming to have experienced the “overwhelming” odor of raw marijuana safely ensconced in a goddamn safe? Probably not. But we’ll never know because Kansas courts won’t apply that standard. And the state’s courts will never have to apply the standard because the top court has stated it’s now OK for cops to rescue a warrantless search simply by saying they smelled something illegal.

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Comments on “Kansas Supreme Court Says Cops Can Search A House Without A Warrant As Long As They Claim They Smelled Marijuana”

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68 Comments
That One Guy (profile) says:

"I love the smell of warrantless searching in the morning."

Why do I suddenly suspect that claimed weed use is about to skyrocket in the state of kansas, as suddenly cops are going to be smelling it everywhere they feel like searching?

And all of this over a substance that multiple states have been sane enough to decide should be legal. Lovely.

kovac says:

Re: warrantless searching

… the Federal government ‘Drug War’ nullified the 4th Amendment decades ago — the Kansas Supremes are just following the well established formal legal “precedents” for warrantless searches and extremely broad legal authorities granted to LEO’s.

SCOTUS has already blessed all police ‘drug-sniffing-dog-alerts’ as full legal justification for warrantless searches. Thus, it is a very short jump of SCOTUS-judicial-logic to assume that LEO’s possess a similar olfactory ability for the commonplace/fragant substance of marijuana.

The critical error being made here is assuming the 4th Amendment still exists in daily law as written … and that judges will honestly enforce it. Reality bites the ignorant.

Anonymous Coward says:

Re: Re: warrantless searching

The critical error being made here is assuming the 4th Amendment still exists in daily law as written … and that judges will honestly enforce it. Reality bites the ignorant.

No. The critical error here is the asshole surrendering their rights because of some sense of vain.

You may not care about your rights, but the rest of us do. This was a prime opportunity for the state of Kansas to uphold the rights of it’s citizens in the face of massive police overreach, and they failed completely. I hope the people of Kansas remember this transgression at future primaries and town hall meetings. They need to get their laws fixed, and get corrupt judges like this one off of the bench.

Uriel-238 (profile) says:

Re: Re: Re:2 The problem with force...

(Other than suggesting insurrection is sometimes interpreted as a crime, even in the US) is that it’s super easy to replace one authoritarian regime with another.

I had imagined by now, some group on Reddit or somewhere discoursey would have created a template constitution (one including all the fixes for broken systems like FPTP and electoral colleges and disproportionately representative senates).

Such a template could be used by new nations that have taken their freedom from oppression by force as a starting point in creating a public-representing system. It could also be used by old nations as a guide to direct where they should prioritize their election reform.

Alas, no such project exists that I know of.

But yes, Kansas’ law enforcement seems to be serving only itself, leaving Kansas open to an opportunistic crime syndicate that would serve the public better than the police do.

Anonymous Anonymous Coward (profile) says:

Multiple problems

To be fair, there are such persons known, and have ability thereto as supertasters. Since tasting is, as it were, limited to five things, sweet, alkaline, salinity, acidity, and umami, and the rest of ‘taste‘ is actually olfactory (odor, what you smell either through the nose or through the throat to the nose) and that one cannot take place without the other. There is a possibility that Lawrence Police Officer Kimberly Nicholson is a supertaster, or more to the point, a super sniffer. And if she is, her time and talents are wasted being a cop, as supertasters are fairly rare.

But even if she is, that needs to be proved. And even if she is, her ‘training and experience’ needs to be quantified with how many time she ‘sniffed’ marijuana, and none was found verses the number of times she ‘sniffed’ marijuana and found some. Then to complicate matters, those times she smelled marijuana smoke and actual raw marijuana. Without admitting to anything, one is more pungent than the other, and the one less pungent is more difficult to detect.

In addition, while marijuana may or may not be legal in Kansas at the moment, there are a majority of states that have some form of marijuana legalization, many of them medical only, and others recreational, it may only be a matter of time before it becomes legalized, nationally. Then where will this ‘precedent’ stand?

In the meantime, should the ‘defendants’ have the resources, appealing this decision to higher authorities might get some of the questions above asked, and maybe a few that I, as a non-lawyer, haven’t thought of.

Paul Brinker (profile) says:

Re: Multiple problems

Assuming all your statements are true, (why not, this sounds fairly cool for cops to hire supertasters). Why cant some scientifically accurate device isolate the “sent” of Marijuana to x parts per million or some such.

There would be a huge market for this device, from auto owners who simply dont like to be falsely accused to cops who want to be able to say “I smell it” and then use the device to get an accurate measurement.

Bamboo Harvester (profile) says:

Re: Re: Re:2 Multiple problems

Google Cyranose, you’ll get a bazillion hits, all of them interesting.

Used model 320’s go for $8,500 from surplus dealers.

The Pentagon already contracts with the manf, and purchases a model far in advance of anything the civilian market is allowed – sounds like Stingray-style “secrets”.

Looking over the search results, even this machine can’t detect the odor of Cannabis in room air – only exhaled breath and skin surfaces.

I suspect it would detect deposits from smoke or unburnt physical contact, but since they aren’t advertising that, it probably hasn’t been accepted by the DoJ as valid evidence recovery – YET.

If a couple more states pass this nonsense, I fully expect to see a $1000 E-Nose to detect weed in ppb amounts, marked in bold letters Law Enforcement Use ONLY, that will show a marijuana POSITIVE when out of “tune”. And they’ll be “tuned” about as often as radar guns are….

Anonymous Coward says:

Re: Multiple problems

I recall an article that discussed law enforcement officers who had completed a course which instructed them on how to detect drug use without the benefit of reliable testing equipment. Apparently they claim they can detect drug use just by looking at someone. Well – isn’t that special?

Bamboo Harvester (profile) says:

Re: Re: Multiple problems

Heh. When the seatbelt laws were first enacted, the Suffolk County NY cops were all given Special Training at a cost of almost a grand per cop to spot people not wearing seatbelts.

Why? For the obvious reason – keeping tickets (revenue) from being dismissed. If they’re Specially Trained, their word is “better” than that of the person ticketed.

Anonymous Coward says:

Re: Re: Re: Multiple problems

In many states the seatbelt law(s) were initially written such that one could not be pulled over just due to a seatbelt violation there had to be some other reason for the stop and then they can also say, here’s your seatbelt ticket. I imagine that did not last very long if adhered to at all.

Paul Brinker (profile) says:

Roll in the Safe

I really want to know why the defence did not roll in a safe, with a tupperware container inside and then ask the officer if they could smell Marijuana.

Anyone who can smell it from 2 feet away from the front door, through several closed doors, surly could smell it from the defence table, especially if it was sitting there all day. Even better we should find out when the officer encountered the smell. Bonus points when you open the safe to show there is none.

Anonymous Coward says:

Re: Roll in the Safe

I really want to know why the defence did not roll in a safe,

Better yet, half a dozen safes in different rooms in the court house, some with Marijuana in a tupperware container in them, and some without. Then ask the officer to identify which safes contain Marijuana. Make that new safes, so that they cant claim they once held Marijuana.

Uriel-238 (profile) says:

Re: Re: Keys to the kingdom

Often a situation has to get really bad before we see mass reform. It’ll be very nice for future Kansans (and hopefully some of us non-Kansans) for them to prove that the police cannot be trusted not to bear false witness regarding what they smell.

But if we establish that the police will circumvent Fourth-amendment protections at any cost to their own integrity, perhaps we’ll address that our law enforcement is driven by so many perverse incentives that it entirely fails to encourage civilians to follow law, and revise our system so that it does.

Tin-Foil-Hat says:

Re: Response to: Adrian Lopez on Dec 14th, 2018 @ 9:38pm

We used to think the Constitution would protect us from government overreach and then surely a Supreme Court ruling. Supreme Court rulings mean les and less as the legal does what it wants. What are you going to do about it? There are never any consequences for violating your rights.

That One Guy (profile) says:

Re: 'Evidence laundering' if you would, more accurate

Why did that not immediately come to mind…?

I suspect you may have nailed it, they knew it was there because of evidence gathered in another way(which may or may not have been a legal way), and rather than honestly getting a warrant from that, they used the ‘I smelled it, through the house, a safe, and a tupperware container’ as the pretext use to justify a search that they couldn’t have justified otherwise.

flyinginn (profile) says:

So in Kansas, a man’s home is his collander? I remember about 50 years ago being told by a well-meaning teacher that unlike the USSR’s constitution which sounded wonderful but wasn’t enforced, the US constitution actually meant something. One of the causes of the US Revolution was Writs of Assistance allowing warrantless search and seizure. By Kansas standards we seem to be well past that point.

Uriel-238 (profile) says:

Habeas Corpus

Couldn’t a ruling like this support a challenge to the legitimacy of the Kansas legal system? After all, they’re claiming police officers have impossible senses.

Imagining a world of superhumans, if a person is capable of detecting such small trace amounts, that might indicate her nose counts as an unreasonable search. I wouldn’t trust her or a court that supports her not to charge people for the trace cocaine on their money.

Paul Brinker (profile) says:

Re: Habeas Corpus

Super human senses are already illegal in most cases.

Thermal Cameras by helicopter are illegal after cops used them to find grow houses.
Dogs Sniffing outside houses are illegal after the above supreme court ruling.

Sadly no one had challenged “I smell Weed” to any kind of scientific standing. But we can tell you that X PPB of almost every industrial chemical smells like x, is detectable to the nose at concentration Y, and its lethal exposure level.

Bamboo Harvester (profile) says:

Re: Habeas Corpus

Possibly. I can see the basis of the countering argument, though.

Raw weed STINKS. As does the smoke from it burning. Smells like the thiols from skunk spray.

Cooked opium and heroin leave a distinctive, persistent odor in rooms where they’ve been heated as well. You pretty much need to repaint to get rid of it.

It’s a matter of setting a threshold limit. Obviously, hermetically sealed in tupperware inside a safe, several rooms away with multiple doors in between shouldn’t be taken as anything other than bullshit (which has it’s own distinctive odor…).

A monkey bong still burning would be the other end of that limit.

So where to draw the line on a cop (or any human) being able to “detect” there is that substance on-site?

Philly Bob says:

I would have secretly brought n a tupperware bowl of hooch wrapped in a ziploc and put it about 6 feet from the officer. After the ruling you could say “hey, you smelled it from 40 feet away in a bowl in a safe in a closet but couldn’t smell it 6 feet from you. Case over. Then of course, they’d arrest you for having weed in a courtroom.

tom (profile) says:

From TFA, the officer knew who the driver was, that her brother had an active warrant, and thought the passenger matched the description of the person with an active warrant. Seems that alone would justify a stop to verify the passenger’s identity and if confirmed as brother with a warrant place him in custody. Better would have been to pull in behind the car while it was parked and perform the check. Likely the brother would have taken off running and solved the problem.

The whole ‘Smelled Marijuana” thing stinks but is likely to go up in smoke with the passage of the latest farm bill that legalized the growing of hemp. Bet it isn’t long before we have hemp based incense to give homes “That aromatic smell of real Pot.” Or will we have cops claiming they can smell the difference between low level THC in industrial hemp and high level THC in drug level pot?

Anonymous Coward says:

Possibly parallel construction. Maybe a suspect in police custody for another crime tells them "I know where you can find a safe full of weed" in the hope of a lighter sentence. Lacking sufficient evidence for a search warrant, the police reverse-engineer their way into that safe.

"Nicholson followed the vehicle, looking for a traffic violation … No violation occurred"

I don’t believe that for an instant. Cars that are being actively followed by police can and will get pulled over for any of a multitude of reasons. "Following too closely" … "improper lane change" … "not coming to a complete stop" … "brake checking" … "license plate dirty/obscured//improperly illuminated" … and basically anything else the cop decides. (and long ago, cops didn’t even need an official reason to pull someone over, as it was more of a general welfare check )

John Cressman says:

Troubling BUT...

I’m troubled by the fact that they don’t need a warrant, however… you completely ignore the fact that the smell could have been ALL OVER the people who answered the door – and most likely was. If you’ve ever been around someone smoking (marijuana or otherwise) you would know that the pungent smell is very noticeable to those of us who don’t smoke.

They still shouldn’t be able to enter without a warrant. But that should be probably cause to GET a warrant.

T Usual says:

Another topic that alarms the drug abusers here, and me, none.

Anti-police, pro-drug Techdirt.

The more the drug war goes, the more it’s proven necessary.

And while remnants of Libertarianism linger, it’s become almost impossible to worry about drug users: they’re nuisances at best.

There’s not much left to Libertarianism except advocating drug use. As do Marxists and others who want to drag down civilization.

SO I end up not caring, and even starting to cheer. Because the police MIGHT recognize me as not a drug user, while you addicts will definitely destroy society if not stopped. That’s the logic you force on me.

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